Exhibit 2.6
DATED 1999
----------------------
ADVIESBURO ENERGIETECHNIEK VAN DE POL B.V.
(ALSO REFERRED TO AS AND TRADING UNDER THE NAME OF
XXXXX COMEX SEAWAY FINANCE)
(AS BORROWER)
- AND -
XXXXX COMEX SEAWAY S.A.
(AS GUARANTOR)
- AND -
DEN NORSKE BANK ASA
AND OTHERS
(AS BANKS)
- AND -
DEN NORSKE BANK ASA
(AS FACILITY AGENT AND SECURITY TRUSTEE)
- AND -
DEN NORSKE BANK ASA
AND OTHERS
(AS ARRANGERS)
- AND -
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(AS SYNDICATION AGENT)
-----------------------------------------
US$150,000,000 SECURED
MULTI-CURRENCY REVOLVING LOAN
FACILITY AGREEMENT
-----------------------------------------
CONTENTS
PAGE
1 Definitions and Interpretation..............................................2
2 The Facility and its Purpose...............................................22
3 Conditions Precedent and Subsequent........................................25
4 Representations and Warranties.............................................31
5 Currency...................................................................34
6 Repayment and Prepayment...................................................35
7 Interest...................................................................37
8 Guarantee and Indemnity....................................................38
9 Fees.......................................................................43
10 Security Documents.........................................................44
11 Agency and Trust...........................................................45
12 Covenants..................................................................55
13 Earnings...................................................................66
14 Events Of Default..........................................................66
15 Set-Off and Lien...........................................................71
16 Assignment and Sub-Participation...........................................72
17 Payments, Mandatory Prepayment, Reserve Requirements and Illegality........75
18 Communications.............................................................80
19 General Indemnities........................................................81
20 Miscellaneous..............................................................83
21 Law and Jurisdiction.......................................................88
SCHEDULE 1....................................................................90
The Banks, the Commitments and the Proportionate Shares...........90
SCHEDULE 2....................................................................92
Lead Arrangers....................................................92
SCHEDULE 3....................................................................93
The Shipowning Guarantors and the Vessels.........................93
SCHEDULE 4....................................................................98
SCHEDULE 5...................................................................100
Form of Transfer Certificate.....................................100
APPENDIX A...................................................................107
APPENDIX B...................................................................108
APPENDIX C...................................................................109
APPENDIX D...................................................................110
APPENDIX E...................................................................111
LOAN FACILITY AGREEMENT
DATED: 1999
BETWEEN:-
(1) ADVIESBURO ENERGIETECHNIEK VAN DE POL B.V. (ALSO REFERRED TO AS AND
TRADING UNDER THE NAME OF XXXXX COMEX SEAWAY FINANCE) which is a
company incorporated according to the law of The Netherlands with its
registered office at Arent Janszoon Ernststraat 595H, 1082 LD
Xxxxxxxxxxx (XX Xxx 0000, 0000 XX Xxxxxxxxx), Xxx Xxxxxxxxxxx (the
"BORROWER"); and
(2) XXXXX COMEX SEAWAY S.A. which is a company incorporated according to
the law of Luxembourg with its registered office at 00 Xxx Xxxxxxxxx
X-000 Xxxxxxxxxx (the "GUARANTOR"); and
(3) the banks listed in Schedule 1, each acting through its office at the
address indicated against its name in Schedule 1 (together "THE BANKS"
and each a "BANK"); and
(4) DEN NORSKE BANK ASA, acting as facility agent and security trustee
through its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Xxxxxx Xxxxxx of America (in that capacity "THE AGENT"); and
(5) the banks and financial institutions listed in Schedule 2, each acting
as a lead arranger through its office at the address indicated against
its name in Schedule 2 (together in that capacity "THE Arrangers" and
each an "ARRANGER"); and
(6) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION acting as
syndication agent through its office at 3 Xxxxx Center, 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Xxxxxx Xxxxxx of America (in
that capacity "THE SYNDICATION AGENT").
WHEREAS:-
(A) Each of the Vessels is registered in the ownership of her Owner under
the flag of the country as indicated in Schedule 3 and each of the ROVs
is owned by the Shipowning Guarantor indicated in Schedule 3.
(B) Each of the Banks has agreed to advance to the Borrower its respective
Commitment of an aggregate principal amount not exceeding one hundred
and fifty million Dollars ($150,000,000) or the Equivalent Amount in a
Permitted Currency or Permitted Currencies (as appropriate) in order to
assist the Borrower in providing for the re-financing of the Existing
Loan in full and with working capital for the Borrower and its
affiliates. It is specifically agreed that at least the lower of fifty
million Dollars ($50,000,000) and one third (1/3) of the Facility
Outstandings at any time during the Facility Period shall be lent by
the Borrower to its parent company, Xxxxx Comex Seaway A/S.
IT IS AGREED as follows:-
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:-
1.1.1 "THE ADDRESS FOR SERVICE" means c/o Xxxxx-Xxxxxxx
Limited, Aldwych House, 00-00 Xxxxxxx, Xxxxxx XX0X
0XX, Xxxxxxx or, in relation to any of the Security
Parties, such other address in England and Wales as
that Security Party may from time to time designate
by no fewer than ten Business Days' written notice to
the Agent.
1.1.2 "THE ADDITIONAL RATE" means the cost imputed to the
Banks of compliance with:
(a) the mandatory liquid asset requirements of
the Bank of England and/or the banking
supervision or other costs imposed by the
2
Financial Services Authority, as determined
in accordance with Appendix E; and
(b) any other applicable regulatory or central
bank requirement (including any requirement
of the European Central Bank) relating to
any amount advanced under this Agreement by
a Bank through a branch in a state being one
of the participating countries which at the
relevant time shall have entered into
economic and monetary union (as a result of
the legislative measures contemplated by the
Treaty of Rome of 25 March 1957, as amended
from time to time).
1.1.3 "THE ADMINISTRATION" has the meaning given to it in
paragraph 1.1.3 of the ISM Code.
1.1.4 the "ADVANCE DATE", in relation to any Drawing, means
the date on which that Drawing is advanced by the
Banks to the Borrower pursuant to Clause 2.
1.1.5 "THE ASSIGNMENTS" means the deeds of assignment of
the Insurances, Earnings and Requisition Compensation
in respect of each Vessel referred to in Clause 10.2
(each an "ASSIGNMENT").
1.1.6 "THE BORROWER'S OBLIGATIONS" means all of the
liabilities and obligations of the Borrower to the
Finance Parties under or pursuant to the Borrower's
Security Documents, whether actual or contingent,
present or future, and whether incurred alone or
jointly or jointly and severally with any other and
in whatever currency, including (without limitation)
interest, commission and all other charges and
expenses.
1.1.7 "THE BORROWER'S SECURITY DOCUMENTS" means those of
the Security Documents to which the Borrower is or is
to be a party.
3
1.1.8 "BREAK COSTS" means all documented costs, losses,
premiums or penalties incurred by any of the Finance
Parties in the circumstances contemplated by Clause
19.4 or as a result of any of them receiving any
prepayment of all or any part of the Facility
(whether pursuant to Clause 6.2 or otherwise) or any
other payment under or in relation to the Security
Documents on a day other than the due date for
payment of the sum in question, and includes (without
limitation) any losses or costs incurred in
liquidating or re-employing deposits from third
parties acquired to effect or maintain the Facility,
and any liabilities, expenses or losses incurred by
any of the Finance Parties in terminating or
reversing, or otherwise in connection with, any
interest rate and/or currency swap, transaction or
arrangement entered into by any of the Finance
Parties to hedge any exposure arising under this
Agreement, or in terminating or reversing, or
otherwise in connection with, any open position
arising under this Agreement.
1.1.9 "BUSINESS DAY" means (a) a day on which banks are
open for the transaction of business of the nature
contemplated by this Agreement (and not authorised by
law to close) in New York City, United States of
America; London, England; Oslo, Norway, Brussels,
Belgium; and (b) in relation to the determination of
interest rates for euros only, a day on which the
Trans-European Automated Real Time Gross Settlement
Express System (TARGET) is operating.
1.1.10 "CERTIFICATE OF COMPLIANCE" means a certificate
materially in the form set forth in Schedule 4,
signed by the finance director or similar officer of
the Guarantor.
1.1.11 "CHANGE OF CONTROL" means that SNSA shall cease, for
any reason whatsoever, to own or control directly or
indirectly, shares of the Guarantor representing at
least 30% of all votes capable of being represented
in any shareholders' meeting of the Guarantor or if
any shareholder or group of shareholders acting in
concert outside SNSA at any time own or control,
directly or indirectly, more of the issued voting
4
shares determined, on a per vote basis, of the
Guarantor than those owned by SNSA.
1.1.12 "COMMITMENT" means, in relation to each Bank, the
amount of the Facility which that Bank agrees to
advance to the Borrower as its several liability as
indicated against the name of that Bank in Schedule
1, as reduced from time to time in accordance with
Clause 2.4.5, or, where the context permits, the
amount of the Facility advanced by that Bank and
remaining outstanding.
1.1.13 "COMMITMENT COMMISSION" means the commitment
commission to be paid by the Borrower to the Agent
pursuant to Clause 9.2.
1.1.14 a "COMMUNICATION" means any notice, approval, demand,
request or other communication from one party to this
Agreement to any other party to this Agreement.
1.1.15 "THE COMMUNICATIONS ADDRESS" means c/x Xxxxx Comex
Seaway M.S. Limited, Xxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx, XX00 0XX, Xxxxxxxx, Xxxxxx
Xxxxxxx fax no: x(00) 0000 000 000 marked for the
attention of Xxxx Frikstad.
1.1.16 "THE COMPANY" means, in relation to any Vessel and
at any given time, the company responsible for the
Vessel's compliance with the ISM Code pursuant to
paragraph 1.1.2 of the ISM Code.
1.1.17 "CONSOLIDATED DEBT" means for the Guarantor and its
Subsidiaries (on a consolidated basis) at any time,
the aggregate value of (i) notes payable (whether
promissory notes or otherwise), plus (ii) long-term
debt (including current portion of long-term debt),
plus (iii) capitalised lease obligations on behalf of
third parties and all contingent liabilities related
to debt and capital lease obligations which,
according to US GAAP, are considered probable and
estimable, plus (iv) subordinated debt, less (v)
5
the amount of debt for which there is a restricted
cash deposit which will repay all or part of such
financial debt obligation.
1.1.18 "CONSOLIDATED TANGIBLE NET WORTH" means for the
Guarantor and its Subsidiaries (on a consolidated
basis) at any time (a) the sum, to the extent shown
on the Guarantor's consolidated balance sheet, of (i)
the amount of issued and outstanding share capital,
less the cost of treasury shares, plus (ii) the
amount of surplus and retained earnings, less (b)
intangible assets as determined in accordance with US
GAAP.
1.1.19 "CONVERTED" means actually or notionally (as the case
may require) converted by the Agent, at the rate at
which the Agent, in accordance with its usual
practice, is able in the London Interbank market to
purchase the Permitted Currency in which the Facility
or part thereof is then denominated with the
Permitted Currency in which the Facility or part
thereof is to be denominated, on the second Business
Day before the value date for that conversion
pursuant to Clause 5, and the words "CONVERT" and
"CONVERSION" shall be interpreted accordingly.
1.1.20 "CURRENCY OF ACCOUNT" means, in relation to any
payment to be made to a Finance Party pursuant to any
of the Security Documents, the currency in which that
payment is required to be made by the terms of the
relevant Security Document.
1.1.21 "THE DEED OF COVENANTS" means the deed of covenants
referred to in Clause 10.1.
1.1.22 "DEFAULT RATE" means the rate which is the aggregate
of (i) one per centum (1%) per annum and (ii) the
applicable Margin, above LIBOR.
1.1.23 "DOC" means a valid Document of Compliance issued
for the Company by the Administration pursuant to
paragraph 13.2 of the ISM Code.
6
1.1.24 "DOLLARS" and "$" each means available and freely
transferable and convertible funds in lawful currency
of the United States of America.
1.1.25 "DRAWDOWN NOTICE" means a notice complying with
Clause 2.3.
1.1.26 "DRAWING" means a part (or, if requested and
available, all) of the Facility advanced by the Banks
to the Borrower in accordance with Clause 2.
1.1.27 "EARNINGS", in relation to a Vessel and each ROV,
means all hires, freights, pool income and other sums
payable to or for the account of the Owner in respect
of that Vessel or ROV including (without limitation)
all remuneration for salvage and towage services,
demurrage and detention moneys, contributions in
general average, compensation in respect of any
requisition for hire and damages and other payments
(whether awarded by any court or arbitral tribunal or
by agreement or otherwise) for breach, termination or
variation of any contract for the operation,
employment or use of the Vessel or ROV.
1.1.28 "EBITDA" means the consolidated Earnings of the
Guarantor and its Subsidiaries before interest,
Taxes, depreciation and amortisation, at any time
during the Facility Period as determined in
accordance with US GAAP, calculated on a pro forma
basis to include acquisitions.
1.1.29 "ENCUMBRANCE" means any mortgage, charge, pledge,
lien, assignment, hypothecation, preferential right,
option, title retention or trust arrangement or any
other agreement or arrangement which has the effect
of creating security.
1.1.30 "EQUIVALENT AMOUNT" means the amount of any Permitted
Currency converted from the relevant amount of
Dollars.
1.1.31 "EURO" means the currency of participating Member
States of the European Monetary Union, pursuant to
Council Regulation (EC) 974/98
7
of 3 May 1998, (as changed from time to time by the
European Communities).
1.1.32 "EVENT OF DEFAULT" means any of the events set out in
Clause 14.2.
1.1.33 "EXECUTION DATE" means the date on which this
Agreement is executed by each of the parties thereto.
1.1.34 "THE EXISTING LOAN" means the inter-company debt due
from an indirect parent of the Borrower to Xxxxx
Xxxxxxx Transportation Group Limited (formerly Xxxxx
Parcel Tankers Inc.), a subsidiary of SNSA pursuant
to a loan agreement dated 10 August 1998.
1.1.35 "FACILITY" means the multi-currency revolving credit
facility made available by the Banks to the Borrower
pursuant to this Agreement.
1.1.36 "THE FACILITY OUTSTANDINGS" at any time means the
total of all Drawings made at that time, to the
extent not reduced by repayments, prepayments and
voluntary reductions.
1.1.37 "THE FACILITY PERIOD" means the period beginning on
the Execution Date and ending on the date when the
whole of the Indebtedness has been repaid in full and
the Borrower has ceased to be under any further
actual or contingent liability to the Finance Parties
under or in connection with the Security Documents.
1.1.38 "FACTORING AGREEMENT" means the factoring agreement
in relation to the assignment of earnings contained
in the Assignment over mv "SEAWAY FALCON" to be made
between the Agent and Xxxxx Comex Seaway A/S referred
to in Clause 10.6.
1.1.39 "THE FEE LETTERS" means the letters from the Agent as
agreed and accepted by the Borrower and the Guarantor
setting out certain fees,
8
commissions and other sums payable by the Borrower to
the Agent in connection with the Facility.
1.1.40 "THE FINANCE PARTIES" means the Banks, the Agent, the
Arrangers and the Syndication Agent.
1.1.41 "FIRST REDUCTION DATE" means the date falling six (6)
months after the Execution Date.
1.1.42 "GENERAL SECURITY AGREEMENTS" means (i) the bond and
floating charge and assignation of insurances in
relation to the ROVs owned by Xxxxx Comex Seaway
Limited (ii) the deed of charge and assignment over
the ROVs owned by SCS Shipping Limited and (iii) the
grant of security interest and assignment of
Earnings, Insurances and Requisition Compensation in
relation to the ROVs owned by SCS Shipping
Corporation and owned or to be owned by Xxxxx Comex
Seaway Inc. referred to in Clause 10.5 (each a
"GENERAL SECURITY AGREEMENT").
1.1.43 "THE GUARANTEE" means the guarantee and indemnity of
the Guarantor contained in Clause 8.
1.1.44 "GUARANTOR'S CAPITAL MARKETS ISSUE" means any capital
markets issue by the SCS Group or any part thereof
not specifically taken up for an acquisition.
1.1.45 "THE GUARANTOR'S LIABILITIES" means all of the
liabilities and obligations of the Guarantor to the
Finance Parties under or pursuant to the Guarantee
whether actual or contingent, including (without
limitation) Interest.
1.1.46 "THE INDEBTEDNESS" means the Facility Outstandings;
all other sums of any nature including costs
(together with all interest on any of those sums)
which from time to time may be payable by the
Borrower to the Finance Parties pursuant to the
Security Documents;
9
any damages payable as a result of any breach by the
Borrower of any of the Security Documents; and any
damages or other sums payable as a result of any of
the obligations of the Borrower under or pursuant to
any of the Security Documents being disclaimed by a
liquidator or any other person, or, where the context
permits, the amount thereof for the time being
outstanding.
1.1.47 an "INSTRUCTING GROUP" means any one or more Banks
whose combined Proportionate Shares exceed sixty six
per centum (66%).
1.1.48 "INSURANCES", in relation to a Vessel and each ROV,
means all policies and contracts of insurance
(including all entries in protection and indemnity or
war risks associations) which are from time to time
taken out or entered into in respect of or in
connection with that Vessel or that ROV or her
increased value and (where the context permits) all
benefits thereof, including all claims of any nature
and returns of premium.
1.1.49 "INTER-COMPANY INDEBTEDNESS" means a note documenting
any inter-company debt due from SNSA or any of its
subsidiaries, other than a member of the SCS Group,
to any member(s) of the SCS Group, on a consolidated
basis, which exceeds twenty five million Dollars
($25,000,000) in principal or its equivalent in
another currency and is not repayable by its terms
within a period of three (3) months.
1.1.50 "INTER-COMPANY INDEBTEDNESS ASSIGNMENTS" means any
deeds of assignment of Inter-Company Indebtedness
referred to in Clause 10.4 (each "AN INTER-COMPANY
INDEBTEDNESS ASSIGNMENT").
1.1.51 "INTEREST" means interest at the Default Rate.
1.1.52 "INTEREST PAYMENT DATE" means each date for the
payment of interest in accordance with Clause 7.
10
1.1.53 "INTEREST PERIOD" means each interest period selected
by the Borrower or agreed by the Agent pursuant to
Clause 7.
1.1.54 "THE ISM CODE" means the International Management
Code for the Safe Management of Ships and for
Pollution Prevention, as adopted by the Assembly of
the International Maritime Organisation on 4 November
1993 by resolution A.741 (18) and incorporated on 19
May 1994 as chapter IX of the Safety of Life at Sea
Convention 1974.
1.1.55 "LAW" means any law, statute, treaty, convention,
regulation, instrument or other subordinate
legislation or other legislative or quasi-legislative
rule or measure, or any order or decree of any
government, judicial or public or other body or
authority, or any directive, code of practice,
circular, guidance note or other direction issued by
any competent authority or agency (whether or not
having the force of law).
1.1.56 "LIBOR" means the rate, rounded to the nearest four
decimal places downwards (if the digit displayed in
the fifth decimal place is 1,2,3 or 4) or upwards (if
the digit displayed in the fifth decimal place is 5,
6,7,8 or 9) displayed on the telerate page 3750 or,
as the case may be, 3740 (or such other page or pages
which replace(s) either such page for the purposes of
display offered rates of leading banks, for deposits
in the Currency of Account of amounts equal to the
amount of the relevant Drawing for a period equal in
length to the relevant Interest Period or if there is
no such display rate then available for the Permitted
Currency for an amount comparable to the Drawing, the
arithmetic mean (rounded upwards, if necessary, to
the nearest whole multiple of one-sixteenth per
centum (1/16%)) of the respective rates notified to
the Agent by each of the Reference Banks as the rate
at which it is offered deposits in the Currency of
Account and for the required period by prime banks in
the London Interbank Market.
1.1.57 "THE MANAGERS" means Xxxxx Comex Seaway Inc. or Xxxxx
Comex Seaway A/S, or such other commercial and/or
technical managers of the
11
Vessels and any ROVs which are leased to a party
outside the SCS Group nominated by the Owners as the
Agent may in its discretion approve.
1.1.58 "MANAGEMENT AGREEMENT" means, in relation to any
Vessel or ROV which is leased to a party outside the
SCS Group, the Management Agreement made between the
Managers and the relevant Owner.
1.1.59 "MARGIN" based on the ratio of Consolidated Debt to
EBITDA for the preceding four fiscal quarters
("D/EBITDA") means:-
(a) for the first three (3) years of the
Facility Period:-
(i) 0.85% where D/EBITDA is less than
1;
(ii) 0.95% where D/EBITDA is equal to or
greater than 1 but less than 2;
(iii) 1.10% where D/EBITDA is equal to
or greater than 2 but less than 3;
and
(iv) 1.25% where D/EBITDA is equal to
or greater than 3; and
(b) for the fourth year of the Facility Period
until the end of the Facility Period:-
(i) 1% where D/EBITDA is less than 1;
(ii) 1.10% where D/EBITDA is equal to or
greater than 1 but less than 2;
(iii) 1.25% where D/EBITDA is equal to or
greater than 2 but less than 3; and
(iv) 1.40% where D/EBITDA is equal to or
greater than 3,
Provided however that each applicable Margin shall
automatically increase by fifty per cent (50%) in the
event of a Change of Control, unless such Change of
Control is acceptable to all the Banks. The Margin
shall be calculated by the Agent as of 28 February,
31 May, 31 August and 30 November each year (each a
"MARGIN REVIEW DATE")
12
commencing 28 February 1999 for the succeeding
fiscal quarter and shall be calculated based on the
Consolidated Debt at the end of the relevant fiscal
quarter over EBITDA for the preceding four fiscal
quarters, the most recent of which shall have ended
on the previous Margin Review Date (which in the
case of the calculations made as of 28 February 1999
shall be 30 November 1998).
1.1.60 "MATERIAL VESSEL" means mv "SEAWAY FALCON".
1.1.61 "THE MAXIMUM FACILITY AMOUNT" means the amount of the
aggregate Commitments subject to any reductions
effected in accordance with Clauses 2.4, 6.6 and
17.8.
1.1.62 "MILLENNIUM COMPLIANT" means, in relation to each of
the Security Parties and in relation to each Vessel
and each ROV, that the Systems of that Security
Party, of that Vessel and of that ROV will be able to
recognise and properly to perform, in all material
respects, date sensitive functions involving dates on
or after 31 December 1999, will not be materially
adversely affected by the change of date to 1 January
2000 or any other change of date, and will comply in
all material aspects with all applicable date
recognition and similar requirements of all relevant
laws and of the Insurances.
1.1.63 "THE MORTGAGEES' INSURANCES" means all policies and
contracts of mortgagees' interest insurance and any
other insurance from time to time taken out by the
Agent on behalf of the Banks in relation to the
Vessels and the ROVs pursuant to this Agreement.
1.1.64 "THE MORTGAGES" means the first preferred and/or
priority mortgages referred to in Clause 10.1 (each a
"MORTGAGE").
1.1.65 "NON CLASSIFIED VESSELS" means mv "AMERICAN PATRIOT",
mv "AMERICAN CONSTITUTION", mv "AMERICAN EAGLE", mv
"AMERICAN INDEPENDENCE", mv "AMERICAN
13
RECOVERY" mv "AMERICAN TRIUMPH" and mv "AMERICAN
VICTORY".
1.1.66 "ORIGINAL DOLLAR AMOUNT" means, at any relevant time,
the amount of the Facility which would then have been
outstanding had the Facility at all times been
denominated, drawn and repaid wholly in Dollars in
accordance with Clause 6.
1.1.67 "OWNER" means, in relation to a Vessel or an ROV, the
Shipowning Guarantor against whose name the name of
that Vessel or the description of that ROV appears in
Schedule 3.
1.1.68 "PERMITTED CURRENCY" means Dollars, the euro, each of
the lawful currencies of France (namely French
Francs), Norway (namely Norwegian Kroner), the United
Kingdom (namely Pounds Sterling) and any other
eurocurrency provided that each such currency
selected by the Borrower is acceptable to the Banks
and is freely convertible, transferable and available
to the Banks in the London Interbank market and in
respect of which the Agent is at all material times
able to ascertain LIBOR.
1.1.69 "PERMITTED LIENS" means (i) assignments of earnings
derived from specified fixed assets (which assets
shall not include those assets which are the subject
of a security document or which may become the
subject of a security document at any time during the
facility period) ancillary to the granting of a
security interest in those fixed assets as part of an
asset based financing, (ii) liens for salvage and any
encumbrance which has the prior written approval of
the agent acting upon the instructions of all the
banks, or (iii) any encumbrance arising either by
operation of law or in the ordinary course of the
business of the relevant security party which is
discharged in the ordinary course of business but in
any event does not exist for more than sixty (60)
days.
14
1.1.70 "POTENTIAL EVENT OF DEFAULT" means any event which,
with the giving of notice and/or the passage of time
and/or the satisfaction of any materiality test,
would constitute an Event of Default.
1.1.71 "POUNDS STERLING" means pounds sterling being the
available and freely transferable and convertible
funds in the lawful currency of the United Kingdom.
1.1.72 "PRINCIPAL SUBSIDIARY" means any member of the SCS
Group having total assets exceeding ten per cent
(10%) of the consolidated assets of the SCS Group
and/or having during the last four fiscal quarters
accounted for more than ten per cent (10%) of the
consolidated turnover of the SCS Group.
1.1.73 "PROCEEDINGS" means any suit, action or proceedings
begun by any of the Finance Parties arising out of or
in connection with the Security Documents.
1.1.74 "PROPORTIONATE SHARE" means, for each Bank, the
percentage indicated against the name of that Bank in
Schedule 1.
1.1.75 "PRO RATA INSURANCE PROCEEDS AMOUNT" means, in
respect of each Vessel (other than the Material
Vessel), any insurance proceeds payable in respect of
such Vessel in the event of a Total Loss divided by
the aggregate market value of all the Vessels other
than the Material Vessel, whereby the product of such
fraction is multiplied by the Maximum Facility
Amount.
1.1.76 "REDUCTION DATE" means each date falling at
consecutive six monthly intervals after the First
Reduction Date up to the Termination Date.
1.1.77 "REFERENCE BANKS" means the Agent, Midland Bank Plc
and Bank of America National Trust And Savings
Association.
15
1.1.78 "REQUISITION COMPENSATION", in relation to a Vessel,
means all compensation or other money which may from
time to time be payable to the Owner as a result of
the Vessel being requisitioned for title or in any
other way compulsorily acquired (other than by way of
requisition for hire).
1.1.79 "ROVS" means the ROVs listed in Schedule 3 and
everything now or in the future belonging to them on
board and ashore.
1.1.80 "SCS GROUP" means the Guarantor and its Subsidiaries.
1.1.81 "THE SECURITY DOCUMENTS" means this Agreement, the
Mortgages, the Deed of Covenants, the Assignments,
the Factoring Agreement, the General Security
Agreements, the Inter-Company Indebtedness
Assignments, the Shipowners' Guarantee, or (where the
context permits) any one or more of them, and any
other agreement or document which may at any time be
executed by a member of the SCS Group as security for
the payment of all or any part of the Indebtedness.
1.1.82 "SECURITY PARTIES" means the Borrower, the Guarantor,
the Shipowning Guarantors and any other member of the
SCS Group who may at any time during the Facility
Period be liable for, or provide security for, all or
any part of the Indebtedness, and "SECURITY PARTY"
means any one of them.
1.1.83 "THE SHIPOWNERS' GUARANTEE" means the joint and
several guarantee and indemnity of the Shipowning
Guarantors referred to in Clause 10.3.
1.1.84 "THE SHIPOWNING GUARANTORS" means the companies
listed in Schedule 3, each of which is a company
incorporated according to the law of the country
indicated against its name in Schedule 3 with its
registered office and/or principal place of business
at the address indicated against its name in Schedule
3 (each "A SHIPOWNING GUARANTOR").
16
1.1.85 "SMC" in relation to any Vessel, means a valid
safety management certificate issued for the Vessel
by or on behalf of the Administration pursuant to
paragraph 13.4 of the ISM Code.
1.1.86 "SMS" in relation to any Vessel, means a safety
management system for the Vessel developed and
implemented in accordance with the ISM Code and
including the functional requirements, duties and
obligations required by the ISM Code.
1.1.87 "SNSA" means Xxxxx-Xxxxxxx S.A. a company
incorporated according to the law of Luxembourg with
its registered office at 00 Xxxxxx Xxxxxxxx, X-0000
Xxxxxxxxxx.
1.1.88 "SUBSIDIARY" means a subsidiary undertaking, as
defined in section 258 Companies Act 1985 or any
analogous definition under any other relevant system
of law.
1.1.89 "SURETY" means any person (other than the Borrower
or the Guarantor) who has given or who may in the
future give to the Finance Parties or any of them
any security, guarantee or indemnity for or in
relation to the Borrower's Obligations.
1.1.90 "SYSTEMS" means, in relation to any Security Party,
the computer applications and other electronic
equipment and related software used by that Security
Party in connection with its business, and, in
relation to each Vessel and each ROV, the computer
applications and other electronic equipment and
related software installed from time to time on
board that Vessel or ROV (as the case may be).
1.1.91 "TAXES" means all taxes, levies, imposts, duties,
charges, fees, deductions and withholdings (including
any related interest and penalties) and any
restrictions or conditions resulting in any charge,
other than taxes on the overall net income of a
Finance Party or branch thereof, and "TAX" and
"TAXATION" shall be interpreted accordingly.
17
1.1.92 "THE TERMINATION DATE" means the date falling five
(5) years after the Execution Date.
1.1.93 "TOTAL LOSS", in relation to a Vessel, or an ROV
means:-
(a) an actual, constructive, arranged, agreed
or compromised total loss of that Vessel or
ROV; or
(b) the requisition for title or compulsory
acquisition of that Vessel or ROV by or on
behalf of any government or other authority
(other than by way of requisition for hire);
or
(c) the capture, seizure, arrest, detention or
confiscation of that Vessel or ROV, unless
the Vessel or ROV (as the case may be) is
released and returned to the possession of
the Owner within two months after the
capture, seizure, arrest, detention or
confiscation in question.
1.1.94 "TRANSFER CERTIFICATE" means a certificate materially
in the form set forth in Schedule 5 signed by a Bank
and a Transferee whereby:
(a) such Bank seeks to procure the transfer to
such Transferee of all or a part of such
Bank's rights and obligations under this
Agreement upon and subject to the terms and
conditions set out in Clause 16; and
(b) such Transferee undertakes to perform the
obligations it will assume as a result of
delivery of such certificate to the Agent as
is contemplated in Clause 16.
1.1.95 "TRANSFER DATE" means, in relation to any Transfer
Certificate, the date for the making of the transfer
specified in the schedule to such Transfer
Certificate.
18
1.1.96 "TRANSFEREE" means a bank or other financial
institution to which a Bank seeks to transfer all or
part of such Bank's rights and obligations under this
Agreement.
1.1.97 "THE TRUST PROPERTY" means:-
(a) the benefit of the covenant contained in
Clause 10; and
(b) all benefits arising under (including,
without limitation, all proceeds of the
enforcement of) each of the Security
Documents (other than this Agreement), with
the exception of any benefits arising solely
for the benefit of the Agent).
1.1.98 "US COAST GUARD INSPECTED VESSELS" means mv "AMERICAN
INDEPENDENCE", "AMERICAN RECOVERY", "AMERICAN
TRIUMPH" AND "AMERICAN VICTORY".
1.1.99 "US GAAP" means the generally accepted accounting
principles in the United States of America, from time
to time in effect, subject to any changes in the
rules of US GAAP, consistently applied always
provided that if the Guarantor wishes to change
accounting principles within the applicable rules of
US GAAP, the Borrower shall notify the Agent of the
intention together with an explanation of the effects
on the financial covenants contained in this
Agreement. Should the Banks, and/or the Guarantor,
find that such change will impact upon the result of
the calculation of the financial covenants contained
in this Agreement, the Banks will, following
consultation with the Guarantor, stipulate amendments
to the financial covenants so that the ratio of SCS
Group's performance in respect of the covenants
reflects the position which would have been the case
had no changes to the Guarantor's accounting
principles taken place.
19
1.1.100 "VALUATION" means in relation to a Vessel and an ROV,
the arithmetic mean of the written valuations of that
Vessel or ROV (as the case may be), expressed in
Dollars prepared by two firms of reputable
independent shipbrokers, one appointed by the Agent
and the other appointed by the Borrower, unless
either the Agent or the Borrower disagrees with such
arithmetic average, in which event the two
shipbrokers shall appoint a third firm of reputable
independent shipbrokers and the valuation of the
Vessel or ROV (as the case may be) shall be the
arithmetic mean of all three such valuations. Such
valuations shall be prepared at the Borrower's
expense, without a physical inspection, on the basis
of a sale for prompt delivery for cash at arm's
length between a willing buyer and a willing seller
without the benefit of any charterparty or other
engagement.
1.1.101 "THE VESSELS" means the vessels listed in Schedule
3 and everything now or in the future belonging to
them on board and ashore (each a "VESSEL").
1.2 INTERPRETATION
In this Agreement:-
1.2.1 words denoting the plural number include the singular
and vice versa;
1.2.2 words denoting persons include corporations,
partnerships, associations of persons (whether
incorporated or not) or governmental or
quasi-governmental bodies or authorities and vice
versa;
1.2.3 references to Recitals, Clauses, Schedules and
Appendices are references to recitals and clauses of,
and schedules and appendices to, this Agreement;
1.2.4 references to this Agreement include the Recitals,
the Schedules and the Appendices;
20
1.2.5 the headings and contents page(s) are for the purpose
of reference only, have no legal or other
significance, and shall be ignored in the
interpretation of this Agreement;
1.2.6 references to any document (including, without
limitation, to all or any of the Security Documents)
are, unless the context otherwise requires,
references to that document as amended, supplemented,
novated or replaced from time to time;
1.2.7 references to statutes or provisions of statutes are
references to those statutes, or those provisions, as
from time to time amended, replaced or re-enacted;
1.2.8 references to any of the Finance Parties include
its successors, Transferees and assignees; and
1.2.9 references to times of day are to New York time.
1.3 JOINT AND SEVERAL LIABILITY
1.3.1 All obligations, covenants, representations,
warranties and undertakings in or pursuant to the
Security Documents assumed, given, made or entered
into by the Borrower and the Guarantor shall, unless
otherwise expressly provided, be assumed, given, made
or entered into by the Borrower and the Guarantor
jointly and severally.
1.3.2 Each of the Borrower and the Guarantor agrees that
any rights which it may have at any time during the
Facility Period by reason of the performance of its
obligations under the Security Documents to be
indemnified by the other or by any Surety and/or to
take the benefit of any security taken by the Finance
Parties pursuant to the Security Documents shall be
exercised in such manner and on such terms as the
Agent may require. Each of the Borrower and the
Guarantor agrees to
21
hold any sums received by it as a result of its
having exercised any such right on trust for the
Agent (as agent for the Banks) absolutely.
1.3.3 Each of the Borrower and the Guarantor agrees that it
will not at any time during the Facility Period claim
any set-off or counterclaim against the other or
against any Surety in respect of any liability owed
to it by the other or by any Surety under or in
connection with the Security Documents, nor prove in
competition with any Finance Party in any liquidation
of (or analogous proceeding in respect of) the other
or of any Surety in respect of any payment made under
the Security Documents or in respect of any sum which
includes the proceeds of realisation of any security
held by any of the Finance Parties for the repayment
of the Indebtedness.
2 THE FACILITY AND ITS PURPOSE
2.1 AGREEMENT TO LEND Subject to the terms and conditions of this
Agreement, and in reliance on each of the representations and
warranties made or to be made in or in accordance with each of
the Security Documents, each of the Banks agrees to advance to
the Borrower its Commitment of an aggregate principal amount
not exceeding the Maximum Facility Amount to be used by the
Borrower for the purposes referred to in Recital (B).
2.2 DRAWINGS Subject to satisfaction by the Borrower of the
conditions set out in Clause 3.1 (in respect of the first
Drawing), Clause 3.3 (in respect of all subsequent Drawings),
and subject to Clause 2.3, and provided that the maximum
aggregate amount of the Facility Outstandings at any given
time during the Facility Period shall not exceed the Maximum
Facility Amount, each Drawing shall be advanced to the
Borrower, in each case by the Agent transferring the amount of
the Drawing to such account of the Borrower as the Borrower
shall notify to the Agent in the relevant Drawdown Notice by
such same day method of funds transfer as the Agent shall
select.
2.3 ADVANCE OF DRAWINGS Each Drawing shall be advanced in Dollars,
or in any other Permitted Currency selected in accordance with
Clause 5.1. Each
22
Drawing shall be advanced on a Business Day,
provided that the Borrower shall have given to the Agent not
more than ten and not fewer than four Business Days' notice in
writing materially in the form set out in Appendix A of the
required Advance Date of the Drawing in question. Each
Drawdown Notice once given shall be irrevocable and shall
constitute a warranty by the Borrower that:-
2.3.1 all conditions precedent to the advance of the
Drawing requested in that Drawdown Notice will have
been satisfied on or before the Advance Date
requested;
2.3.2 no Event of Default or Potential Event of Default has
occurred or will then have occurred; and
2.3.3 no Event of Default or Potential Event of Default
will result from the advance of the Drawing in
question.
The Agent shall promptly notify each Bank of the receipt of
each Drawdown Notice, following which each Bank will make its
Proportionate Share of the amount of the requested Drawing
available to the Borrower through the Agent on the Advance
Date requested.
2.4 FACILITY REDUCTION
2.4.1 The amount of the Facility available to the Borrower
for drawing under this Agreement shall be one hundred
and fifty million Dollars ($150,000,000) or the
Equivalent Amount in any other Permitted Currency
during the period from the Execution Date until the
First Reduction Date. On the First Reduction Date and
on each subsequent Reduction Date until the
Termination Date, the amount of the Facility
available for drawing shall decrease by twelve
million five hundred thousand Dollars ($12,500,000).
23
On the Termination Date the Facility available shall
be reduced to zero. The mandatory decreases in the
amount of the Facility available for drawing required
pursuant to this Clause will be made in the amounts
and at the times specified whether or not the
Borrower voluntarily reduces the Maximum Facility
Amount pursuant to Clause 2.4.2, or the Maximum
Facility Amount is reduced pursuant to Clause 2.4.3,
Clause 6.6 or Clause 17.8.
2.4.2 The Borrower may voluntarily reduce the Maximum
Facility Amount in whole or in part in multiples of
two million Dollars ($2,000,000), where applicable
provided that it has first given to the Agent not
fewer than fourteen (14) days' prior written notice
expiring on a Business Day of its desire to reduce
the Maximum Facility Amount. Any such reduction in
the Maximum Facility Amount shall not be reversed.
2.4.3 Upon receipt by the Guarantor of the net proceeds
from any Guarantor's Capital Markets Issue, the
Maximum Facility Amount shall immediately reduce by
the amount of fifty per cent (50%) of such net
proceeds (the "NET PROCEEDS AMOUNT"). Any such
reduction in the Maximum Facility Amount shall not be
reversed. If as a result of such reduction the
Original Dollar Amount exceeds the Maximum Facility
Amount then available, the Guarantor will ensure that
such amount as is necessary of the Net Proceeds
Amount shall be used to prepay the Facility
Outstandings so that the Original Dollar Amount is
not greater than the Maximum Facility Amount. Any
such prepayment shall be applied in inverse order of
maturity and otherwise in accordance with Clauses
6.3, 6.4 and 6.5.
2.4.4 To the extent that repayments or prepayments made by
the Borrower to the Agent in accordance with this
Agreement reduce the Facility Outstandings to less
than the Maximum Facility Amount, the Borrower shall
again be entitled to make Drawings in accordance with
and subject to the terms of this Agreement.
2.4.5 Simultaneously with each reduction of the Maximum
Facility Amount in accordance with Clause 2.4.1,
Clause 2.4.2 or Clause 2.4.3 (as the case may be),
the Commitment of each Bank will reduce so that the
Commitments of the Banks in respect of the reduced
Maximum
24
Facility Amount remain in accordance with
their respective Proportionate Shares.
2.5 RESTRICTIONS ON DRAWINGS The Borrower shall not be entitled to
make more than three Drawings on any Business Day and no more
than ten (10) Drawings may be outstanding at any one time
during the Facility Period. Each Drawing shall be of an amount
of not less than five million Dollars ($5,000,000) or the
Equivalent Amount in any other Permitted Currency. If at any
time during the Facility Period the Original Dollar Amount
exceeds the Maximum Facility Amount then available or if a
proposed Drawing when added to the Original Dollar Amount
would result in the Maximum Facility Amount being exceeded
then the Borrower shall immediately pay to the Agent on behalf
of the Banks such amount as will ensure that the Original
Dollar Amount is equal to or less than the Maximum Facility
Amount then available.
2.6 TERMINATION DATE No Bank shall be under any obligation to
advance all or any part of its Commitment after the
Termination Date.
2.7 SEVERAL OBLIGATIONS The obligations of the Banks under this
Agreement are several. The failure of a Bank to perform its
obligations under this Agreement shall not affect the
obligations of the Borrower to any Finance Party nor shall any
Finance Party be liable for the failure of another Bank to
perform any of its obligations under or in connection with
this Agreement.
2.8 APPLICATION OF FACILITY Without prejudice to the obligations
of the Borrower under this Agreement, no Finance Party shall
be obliged to concern itself with the application of the
Facility by the Borrower.
2.9 LOAN FACILITY AND CONTROL ACCOUNTS The Agent will open and
maintain such loan facility account or such other control
accounts as the Agent shall in its discretion consider
necessary or desirable in connection with the Facility.
25
3 CONDITIONS PRECEDENT AND SUBSEQUENT
3.1 CONDITIONS PRECEDENT - FIRST DRAWING Before any Bank shall
have any obligation to advance the first Drawing under the
Facility, the Borrower shall pay to the Agent the relevant
fees referred to in Clause 9.3 and deliver or cause to be
delivered to or to the order of the Agent the following
documents and evidence:-
3.1.1 EVIDENCE OF INCORPORATION Such evidence as the Agent
may reasonably require that each Security Party was
duly incorporated in its country of incorporation and
remains in existence and, where appropriate, in good
standing, with power to enter into, and perform its
obligations under, those of the Security Documents to
which it is, or is intended to be, a party, including
(without limitation) a copy, certified by a director
or an officer of the Security Party in question as
true, complete, accurate and unamended, of all
documents establishing or limiting the constitution
of each Security Party.
3.1.2 CORPORATE AUTHORITIES A copy, certified by a director
or the secretary of the Security Party in question as
true, complete, accurate and neither amended nor
revoked, of a resolution of the directors and (other
than the Guarantor) a resolution of the shareholders
of each Security Party (together, where appropriate,
with signed waivers of notice of any directors' or
shareholders' meetings) approving, and authorising or
ratifying the execution of, those of the Security
Documents and each Drawdown Notice to which that
Security Party is or is intended to be a party and
all matters incidental thereto.
3.1.3 OFFICER'S CERTIFICATE A certificate (i) signed by a
duly authorised officer of each of the Security
Parties setting out the names of the directors,
officers and (other than the Guarantor) shareholders
of that Security Party and (ii) issued by each
Security Party's company registry confirming due
incorporation and valid existence and (when such
information is maintained by the registry) the names
of its directors and shareholders.
26
3.1.4 POWER OF ATTORNEY The power of attorney (notarially
attested and legalised, if necessary, for
registration purposes) of each of the Security
Parties under which any documents are to be executed
or transactions undertaken by that Security Party.
3.1.5 VESSEL DOCUMENTS Photocopies, certified as true,
accurate and complete by a director or the secretary
of the Owner of (in respect of each Vessel):-
(a) any time charterparty or bareboat
charterparty of that Vessel which will be in
force on the first Advance Date and which
exceeds twelve (12) months duration;
(b) the Management Agreement relating to that
Vessel; and
(c) that Vessel's current Safety Construction,
Safety Equipment, Safety Radio and
Load Line Certificates;
(d) if required by law and that Vessel is
operating in the waters of the United States
of America, that Vessel's current
Certificate of Financial Responsibility
issued pursuant to the United States Oil
Pollution Xxx 0000;
(e) where applicable, that Vessel's current SMC;
and
(f) where applicable, each Company's current DOC
in each case together with all addenda, amendments or
supplements.
3.1.6 EVIDENCE OF OWNERSHIP In respect of (i) each Vessel,
certificate(s) of ownership and encumbrance (or
equivalent) issued by the Registrar of Ships (or
equivalent official) at the Vessel's port of registry
confirming that such Vessel is on the first Advance
Date owned by her Owner and
27
free of registered Encumbrances and (ii) each ROV,
such evidence as the Agent may require that such ROV
is on the first Advance Date owned by her Owner and
is free of Encumbrances.
3.1.7 EVIDENCE OF INSURANCE Evidence that each Vessel and
each ROV is insured in the manner required by the
Security Documents and that letters of undertaking
will be issued in the manner required by the Security
Documents, together with (if required by the Agent)
the written approval of the Insurances by an
insurance adviser appointed by the Agent.
3.1.8 CONFIRMATION OF CLASS A Certificate of Confirmation
of Class for hull and machinery (dated not more than
seven days before the first Advance Date) confirming
that each Vessel other than the Non Classified
Vessels is classed with the highest applicable class
necessary to properly operate such Vessel of Lloyd's
Register of Shipping, Det norske Veritas, the
American Bureau of Shipping or such other
classification society as may be acceptable to the
Agent.
3.1.9 VALUATIONS A valuation of each Vessel and each ROV
addressed to the Agent.
3.1.10 THE SECURITY DOCUMENTS The Security Documents,
together with all notices and other documents
required by any of them, duly executed and, in the
case of the Mortgages, registered with first priority
through the Registrar of Ships (or equivalent
official) at the port of registry of the Vessel
concerned.
3.1.11 DRAWDOWN NOTICE A Drawdown Notice.
3.1.12 PROCESS AGENT A letter from Xxxxx-Xxxxxxx Limited
accepting their appointment by each of the Security
Parties as agent for service of Proceedings pursuant
to the Security Documents.
28
3.1.13 MANAGERS' CONFIRMATION The written confirmation of
the Managers that they will remain the commercial and
technical managers of the Vessels throughout the
Facility Period and will manage the Vessels in
accordance with good standard ship management
practice.
3.1.14 THE FEE LETTERS The Fee Letters countersigned on
behalf of the Borrower and the Guarantor by way of
acceptance of their terms.
3.1.15 LEGAL OPINIONS Confirmation satisfactory to the Agent
that all legal opinions required by the Agent on
behalf of the Banks will be given substantially in
the form required by the Agent on behalf of the
Banks.
3.1.16 ACCOUNTS The consolidated audited accounts of the
Guarantor for its financial year just ended,
certified, by a director or the chief financial
officer of Xxxxx Comex Seaway M.S. Limited as agent
for the Guarantor, as fair and accurate.
3.1.17 US COAST GUARD CERTIFICATION A certified copy of the
currently valid US Coast Guard's certificate of
inspection in respect of the US Coast Guard Certified
Vessels.
3.2 CONDITIONS SUBSEQUENT The Borrower undertakes to deliver or to
cause to be delivered to the Agent on, or as soon as
practicable after, the first Advance Date, the following
additional documents and evidence:-
3.2.1 EVIDENCE OF REGISTRATION Evidence of registration of
the Mortgages, in each case with first priority with
the Registrar of Ships (or equivalent official) at
the port of registry of the Vessel concerned.
3.2.2 LETTERS OF UNDERTAKING Letters of undertaking as
required by the Security Documents in form and
substance acceptable to the Agent.
3.2.3 LEGAL OPINIONS Such legal opinions as the Agent on
behalf of the Banks shall require pursuant to Clause
3.1.15.
29
3.2.4 COMPANIES ACT REGISTRATIONS Evidence that the
prescribed particulars of the Security Documents have
been delivered to the Registrar of Companies of (i)
England and Wales, (ii) Scotland and (iii) the Isle
of Man within the statutory time limit.
3.2.5 UCC FINANCING STATEMENTS Evidence that the Uniform
Commercial Code Financing Statements on Form UCC-1
have been filed against each relevant Security Party,
as debtors, under the laws of the United States of
America within any applicable time limit imposed by
law.
3.2.6 MASTER'S RECEIPTS The master's receipt for each of
the relevant Mortgages.
3.3 CONDITIONS PRECEDENT - SUBSEQUENT DRAWINGS Before any Bank
shall have any obligation to advance any subsequent Drawings
under the Facility, the Borrower shall deliver or cause to be
delivered to the order of the Agent, a Drawdown Notice, in
addition to the documents and evidence referred to in Clause
3.1 where such documents and evidence have not already been
delivered to and received by the Agent.
3.4 NO WAIVER If the Banks in their sole discretion agree to
advance any part of the Facility to the Borrower before all of
the documents and evidence required by Clause 3.1 or Clause
3.3 (as the case may be) have been delivered to or to the
order of the Agent, the Borrower undertakes to deliver all
outstanding documents and evidence to or to the order of the
Agent no later than the date specified by the Agent, and the
advance of any part of the Facility shall not be taken as a
waiver of the Agent's right to require production of all the
documents and evidence required by Clause 3.1 or Clause 3.3
(as the case may be).
3.5 FORM AND CONTENT All documents and evidence delivered to
the Agent pursuant to this Clause shall:-
3.5.1 be in form and substance acceptable to the Agent;
30
3.5.2 be accompanied, if required by the Agent, by
translations into the English language, certified in
a manner acceptable to the Agent;
3.5.3 if required for registration purposes, be certified,
notarised, legalised or attested in a manner
acceptable to the Agent.
3.6 EVENT OF DEFAULT No Bank shall be under any obligation to
advance any part of its Commitment nor to act on any Drawdown
Notice if, at the date of the Drawdown Notice or at the date
on which the advance of a Drawing is requested in the Drawdown
Notice, an Event of Default or Potential Event of Default
shall have occurred, or if an Event of Default or Potential
Event of Default would result from the advance of the Drawing
in question.
4 REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Guarantor represents and warrants to each
of the Finance Parties at the date of this Agreement and (by reference
to the facts and circumstances then pertaining) at the date of each
Drawdown Notice, at each Advance Date and at each Interest Payment Date
as follows (except that the representation and warranty contained at
Clause 4.6 and Clause 4.14 shall only be made on the first Advance
Date):-
4.1 INCORPORATION AND CAPACITY Each of the Security Parties is a
body corporate duly constituted, organised and validly
existing and (where applicable) in good standing under the law
of its country of incorporation, in each case with perpetual
corporate existence and the power to xxx and be sued, to own
its assets and to carry on its business, and all of the
corporate shareholders (if any) of each Security Party (other
than the Guarantor) are duly constituted and existing under
the laws of their countries of incorporation with perpetual
corporate existence and the power to xxx and be sued, to own
their assets and to carry on their business.
4.2 SOLVENCY None of the Security Parties is insolvent or in
liquidation or administration or subject to any other
insolvency procedure, and no receiver, administrative
receiver, administrator, liquidator, trustee or analogous
officer
31
has been appointed in respect of any of the Security Parties
or all or any part of their assets.
4.3 BINDING OBLIGATIONS The Security Documents when duly executed
and delivered will constitute the legal, valid and binding
obligations of the Security Parties enforceable in accordance
with their respective terms subject to applicable laws
regarding creditors' rights in general.
4.4 SATISFACTION OF CONDITIONS All acts, conditions and things
required to be done and satisfied and to have happened prior
to the execution and delivery of the Security Documents in
order to constitute the Security Documents the legal, valid
and binding obligations of the Security Parties in accordance
with their respective terms have been done, satisfied and have
happened in compliance with all applicable laws.
4.5 REGISTRATIONS AND CONSENTS With the exception only of the
registrations referred to in Clause 3.2, all (if any)
consents, licences, approvals and authorisations of, or
registrations with or declarations to, any governmental
authority, bureau or agency which may be required in
connection with the execution, delivery, performance, validity
or enforceability of the Security Documents have been obtained
or made and remain in full force and effect and neither the
Borrower nor the Guarantor is aware of any event or
circumstance which could reasonably be expected adversely to
affect the right of any of the Security Parties (as the case
may be) to hold and/or obtain renewal of any such consents,
licences, approvals or authorisations; provided that if any
Security Party changes its chief executive office or its
principal place of business in the United States of America or
changes the location of any ROV, additional filings may be
necessary.
4.6 DISCLOSURE OF MATERIAL FACTS Neither the Borrower nor the
Guarantor is aware of any material facts or circumstances
which have not been disclosed to the Agent and which might, if
disclosed, have reasonably been expected to adversely affect
the decision of a person considering whether or not to make
32
loan facilities of the nature contemplated by this Agreement
available to the Borrower.
4.7 NO MATERIAL LITIGATION Except for those matters disclosed in
writing to the Agent, there is no action, suit, arbitration or
administrative proceeding nor any contemplated action, suit,
arbitration or administrative proceeding pending or to its
knowledge about to be pursued before any court, tribunal or
governmental or other authority which would, or would be
likely to, have a materially adverse effect on the business,
assets, financial condition or creditworthiness of the SCS
Group.
4.8 NO BREACH OF LAW OR CONTRACT The execution, delivery and
performance of the Security Documents will not contravene any
contractual restriction or any law binding on any of the
Security Parties or on any shareholder (whether legal or
beneficial) of any of the Security Parties (other than the
Guarantor), or the constitutional documents of any of the
Security Parties, nor result in the creation of, nor oblige
any of the Security Parties to create, any Encumbrance over
all or any of its assets, with the exception of the
Encumbrances created by or pursuant to the Security Documents.
4.9 NO DEDUCTIONS Except as disclosed to the Agent in writing,
that to the best of their knowledge belief and without undue
enquiry, none of the Security Parties is required to make any
deduction or withholding from any payment which it may be
obliged to make to any of the Finance Parties under or
pursuant to the Security Documents.
4.10 NO ESTABLISHED PLACE OF BUSINESS IN THE UNITED KINGDOM OR
UNITED STATES Save in respect of the Borrower, and the Owners
referred to in Schedule 3 whose registered office or principal
place of business is in the United Kingdom or the United
States of America, none of the Security Parties has, at the
date of this Agreement, an established place of business in
the United Kingdom or the United States of America. The
addresses of the relevant Owner's principal place of business
specified in Schedule 3 are correct as at the date of this
Agreement.
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4.11 USE OF FACILITY The Facility will be used for the purposes
specified in Recital (B).
4.12 MILLENNIUM COMPLIANCE To the best of the Borrower's and the
Guarantor's knowledge, all of the Systems of each of the
Security Parties, of each Vessel and of each ROV are, or will
in a timely manner be, Millennium Compliant.
4.13 SUBSIDIARIES Save as a result of any merger or amalgamation
effected pursuant to Clause 12.1.4, each of the Shipowning
Guarantors is and will remain throughout the Facility Period
a directly or indirectly wholly owned subsidiary of SCS.
4.14 NON-RESIDENT STATUS SCS Shipping Limited is and will
throughout the Facility Period continue to be a non-resident
company within the meaning of the Non-Resident Company Duty
Act 1986 as amended or substituted and each of the Security
Parties are and will remain throughout the Facility Period
non-resident in the Isle of Man for tax purposes.
4.15 MATERIAL ADVERSE CHANGE There has been no material adverse
change in the financial condition of the Borrower or the
Guarantor since delivery to the Agent of the Guarantor's
consolidated audited accounts referred to in Clause 3.1.16.
4.16 FINANCE COMPANY STATUS That the to the extent applicable
complies with and shall throughout the Facility Period
continue to comply, with the regulations of the Netherlands
Ministry of Finance dated 4 February 1993 with respect to
finance companies and that all notice requirements to the
Dutch central bank pursuant to the Foreign Financial Relations
Act ("Wet Financiele Betrekkingen Buitenland") 1994 have been
complied with and shall throughout the Facility Period
continue to be complied with.
5 CURRENCY
5.1 SELECTION OF PERMITTED CURRENCY The Borrower may from time to
time in accordance with this Clause select the Permitted
Currency in which it wishes a
34
Drawing to be denominated. Any such selection made by the
Borrower shall be contained in the Drawdown Notice relating to
the Drawing in question. Once a Permitted Currency in respect
of a Drawing is selected such Drawing shall remain denominated
in such Permitted Currency until its repayment in accordance
with this Agreement.
5.2 CONDITIONS PRECEDENT TO DENOMINATION IN A PERMITTED CURRENCY
The denomination of a Drawing in a Permitted Currency pursuant
to this Clause shall be subject to the following:-
5.2.1 no Drawing may at any time during the Facility Period
be denominated in more than one Permitted Currency
and any notice requesting denomination of the Drawing
in more than one Permitted Currency shall be of no
effect; and
5.2.2 denomination of a Drawing in the Permitted Currency
selected by the Borrower shall not be effected if the
Agent certifies by notice in writing to the Borrower,
which notice shall be final and conclusive, that
deposits in the Permitted Currency selected for the
amount of the relevant Drawing and for the Interest
Period selected are not available to the Banks in the
normal course of business in the London Interbank
market on the relevant date.
5.3 NON-AVAILABILITY OF PERMITTED CURRENCY If, in any Permitted
Currency selected, deposits of the specified amount and for
the specified Interest Period are not available to any of the
Banks in the normal course of business in the London Interbank
market on the relevant date, or if the Borrower fails to
specify a Permitted Currency for a Drawing, that Drawing shall
be denominated in Dollars for the duration of the relevant
Interest Period.
5.4 REPAYMENT During each Interest Period in which a Drawing is
denominated in a Permitted Currency other than Dollars, the
obligation of the Borrower to repay the Drawing and to pay
interest shall be an obligation to repay that Drawing and to
pay interest on that Drawing in the Permitted Currency in
which
35
the Drawing is then denominated, whether or not the
Facility Outstandings or any part thereof shall have become
repayable by acceleration.
5.5 FURTHER ASSURANCE The Borrower shall execute or procure the
execution of such further documents as the Agent may
reasonably require from time to time in order to preserve and
maintain the validity of the Security Documents as full
security for the repayment of the Indebtedness.
6 REPAYMENT AND PREPAYMENT
6.1 REPAYMENT Each Drawing shall be repaid by the Borrower to the
Agent on behalf of the Banks on the last day of its Interest
Period unless the Borrower selects a further Interest Period
for that Drawing in accordance with Clause 7, provided that
the Borrower shall not be permitted to select such further
Interest Period if an Event of Default or Potential Event of
Default has occurred and shall then be obliged to repay such
Drawing on the last day of its then current Interest Period.
In addition, the Borrower shall from time to time repay to the
Agent as agent for the Banks such amounts of the Facility
Outstandings as will ensure that the Original Dollar Amount
does not exceed the Maximum Facility Amount then available.
The Borrower shall on the Termination Date repay to the Agent
as agent for the Banks all Facility Outstandings.
6.2 PREPAYMENT The Borrower may prepay the Facility Outstandings
in whole or in part in multiples of two million Dollars
($2,000,000), or its Equivalent Amount in a Permitted Currency
where applicable, (or as otherwise may be agreed by the Agent)
provided that it has first given to the Agent not fewer than
fourteen (14) days' prior written notice expiring on a
Business Day of its intention to do so. Any notice pursuant to
this Clause 6.2 once given shall be irrevocable and shall
oblige the Borrower to make the prepayment referred to in the
notice on the Business Day specified in the notice, together
with all interest accrued on the amount prepaid up to and
including that Business Day.
6.3 PREPAYMENT INDEMNITY If the Borrower shall, subject always to
Clause 6.2, make a prepayment on a Business Day other than the
last day of an Interest Period, it shall pay to the Agent on
behalf of the Banks any amount which is
36
necessary to compensate the Banks for any Break Costs incurred
by the Agent or any of the Banks as a result of the prepayment
in question.
6.4 APPLICATION OF PREPAYMENTS Any prepayment in an amount less
than the Indebtedness shall be applied in satisfaction or
reduction first of any costs and other moneys outstanding;
secondly of all interest outstanding with respect to the
currency in which the prepayment is to be made; thirdly of the
outstanding Drawings in the currency in which the prepayment
is to be made in inverse order of maturity, fourthly of all
other interest outstanding; and fifthly of all other
outstanding Drawings in inverse order of maturity.
6.5 REBORROWING OF PREPAYMENTS Any amount prepaid pursuant to this
Agreement may be reborrowed in accordance with Clause 2.4.3
and subject to compliance with Clause 12.2.2.
6.6 TOTAL LOSS In the event that the Material Vessel becomes a
Total Loss, on the date of such Total Loss occurring, the
Maximum Facility Amount shall reduce by the amount of the
insurance proceeds payable in respect of such Total Loss. In
the event that any Vessel (other than the Material Vessel)
becomes a Total Loss, on the date of such Total Loss
occurring, the Maximum Facility Amount shall reduce by the Pro
Rata Insurance Proceeds Amount in respect of such Vessel. Any
such reductions in the Maximum Facility Amount shall not be
reversed. If as a result of any reduction in the Maximum
Facility Amount pursuant to this Clause the Original Dollar
Amount exceeds the Maximum Facility Amount, the Borrower
shall, on the earlier to occur of (a) the one hundred and
eightieth day after the date of such Total Loss occurring and
(b) the date on which the Owner receives the proceeds of such
Total Loss, prepay such amount of the Original Dollar Amount
as will ensure that the Original Dollar Amount is not greater
than the Maximum Facility Amount. Any such prepayment shall
not be reborrowed, and Clause 6.3 shall apply to any such
prepayment.
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7 INTEREST
7.1 INTEREST PERIODS The period during which any Drawing shall be
outstanding pursuant to this Agreement shall be divided into
consecutive Interest Periods of one, three or six months'
duration, as selected by the Borrower by written notice to the
Agent not later than 11.00 a.m. on the fourth Business Day
before the beginning of the Interest Period in question, or
such other duration as may be agreed by the Banks in their
discretion. No more than three one (1) month Interest Periods
may be selected by the Borrower in each calendar year during
the Facility Period.
7.2 BEGINNING AND END OF INTEREST PERIODS The first Interest
Period in respect of each Drawing shall begin on the Advance
Date of that Drawing and shall end on the last day of the
Interest Period selected in accordance with Clause 7.1. Any
subsequent Interest Period selected in respect of each Drawing
shall commence on the day following the last day of its
previous Interest Period and shall end on the last day of its
current Interest Period selected in accordance with Clause
7.1. However, in respect of any Drawings outstanding on the
Termination Date, the Interest Period applicable to such
Drawings shall end on the Termination Date.
7.3 INTEREST RATE During each Interest Period interest shall
accrue on each Drawing at the rate determined by the Agent to
be the aggregate of (a) the applicable Margin, (b) LIBOR and,
if applicable, (c) the Additional Rate, determined in each
case, at or about 11.00 a.m. on the second Business Day prior
to the beginning of the Interest Period relating to that
Drawing.
7.4 ACCRUAL AND PAYMENT OF INTEREST Interest shall accrue from day
to day, shall be calculated on the basis of a 360 day year and
the actual number of days elapsed (or, in any circumstance
where market practice differs, in accordance with the
prevailing market practice) and shall be paid by the Borrower
to the Agent on behalf of the Banks on the last day of each
Interest Period and additionally, during any Interest Period
exceeding three months, on the last day of each successive
three month period after the beginning of that Interest
Period.
38
7.5 ENDING OF INTEREST PERIODS If any Interest Period would end on
a day which is not a Business Day, that Interest Period shall
end on the next succeeding Business Day (unless the next
succeeding Business Day falls in the next calendar month, in
which event the Interest Period in question shall end on the
next preceding Business Day).
7.6 DEFAULT RATE If an Event of Default shall occur, the whole of
the Indebtedness shall, from the date of the occurrence of
the Event of Default, bear interest up to the date of actual
payment (both before and after judgment) at the Default Rate,
compounded at such intervals as the Agent shall in its
discretion determine, which interest shall be payable from
time to time by the Borrower to the Agent on behalf of the
Banks on demand.
7.7 DETERMINATIONS CONCLUSIVE Each determination of an interest
rate made by the Agent in accordance with Clause 7 shall (save
in the case of manifest error or on any question of law) be
final and conclusive.
8 GUARANTEE AND INDEMNITY
8.1 THE BORROWER'S OBLIGATIONS
In consideration of the agreement of the Banks to make the
Facility available to the Borrower, the Guarantor:-
8.1.1 irrevocably and unconditionally guarantees to
discharge on demand the Borrower's Obligations,
including Interest from the date of demand until the
date of payment, both before and after judgement; and
8.1.2 agrees, as a separate and independent obligation,
that, if any of the Borrower's Obligations are not
recoverable from the Guarantor under Clause 8.1.1 for
any reason, the Guarantor will be liable to the
Finance Parties as a principal debtor by way of
indemnity for the same amount as that for which the
Guarantor would have been liable had those Borrower's
Obligations been recoverable and agrees to discharge
its liability under this Clause 8.1.2 on demand
together with Interest from
39
the date of demand until the date of payment, both
before and after judgement.
8.2 CONTINUING SECURITY
The Guarantee is a continuing security for the full amount of
the Borrower's Obligations from time to time and shall remain
in force notwithstanding the liquidation of the Borrower or
any change in the constitution of the Borrower or of any
Finance Party or the absorption of or amalgamation by any
Finance Party in or with any other entity or the acquisition
of all or any part of the assets or undertaking of any Finance
Party by any other entity.
8.3 PRESERVATION OF GUARANTOR'S LIABILITY
8.3.1 The Banks may without the Guarantor's consent and
without notice to the Guarantor and without in any
way releasing or reducing the Guarantor's
Liabilities:-
(a) amend, novate, supplement or replace all
or any of the Borrower's Security
Documents;
(b) increase or reduce the amount of the
Facility or vary the terms and conditions
for its repayment or prepayment (including,
without limitation, the rate and/or method
of calculation of interest payable on the
Facility);
(c) allow to the Borrower or to any other person
any time or other indulgence;
(d) renew, vary, release or refrain from
enforcing any of the Borrower's Security
Documents or any other security, guarantee
or indemnity which the Agent may now or in
the future hold from the Borrower or from
any other person;
40
(e) compound with the Borrower or any other
person;
(f) enter into, renew, vary or terminate any
other agreement or arrangement with the
Borrower or any other person; or
(g) make any concession to the Borrower or do or
omit or neglect to do anything which might,
but for this provision, operate to release
or reduce the liability of the Guarantor
under the Guarantee.
8.3.2 The liability of the Guarantor under the Guarantee
shall not be affected by:-
(a) the absence of or any defective, excessive
or irregular exercise of any of the
powers of the Borrower or of any Surety;
(b) any security given or payment made to the
Finance Parties or any of them by the
Borrower or any other person being avoided
or reduced under any law (whether English or
foreign) relating to bankruptcy or
insolvency or analogous circumstance in
force from time to time;
(c) the liquidation, administration,
receivership or insolvency of the Guarantor;
(d) any other security, guarantee or indemnity
now or in the future held by the Finance
Parties or any of them being defective, void
or unenforceable, or the failure of the any
Finance Party to take any security,
guarantee or indemnity;
(e) any compromise or arrangement under Part I
or Part VII of the Insolvency Xxx 0000 or
section 425 of the Companies Xxx 0000 (or
any statutory modification or re-enactment
of either of them for the time being in
force) or under any analogous provision of
any foreign law;
41
(f) the novation of any of the Borrower's
Obligations;
(g) anything which would not have released or
reduced the liability of the Guarantor to
the Finance Parties had the liability of the
Guarantor under Clause 8.1.1 been as a
principal debtor of the Finance Parties and
not as a guarantor.
8.4 PRESERVATION OF BANKS' RIGHTS
8.4.1 The Guarantee is in addition to any other security,
guarantee or indemnity now or in the future held by
the Finance Parties in respect of the Borrower's
Obligations, whether from the Borrower, the Guarantor
or any other person, and shall not merge with,
prejudice or be prejudiced by any such security,
guarantee or indemnity or any contractual or legal
right of each Finance Party.
8.4.2 Any release, settlement, discharge or arrangement
relating to the liabilities of the Guarantor under
the Guarantee shall be conditional on no payment,
assurance or security received by the Finance Parties
in respect of the Borrower's Obligations being
avoided or reduced under any law (whether English or
foreign) in force from time to time relating to
bankruptcy, insolvency or any (in the opinion of the
Agent) analogous circumstance and after any such
avoidance or reduction the Finance Parties shall be
entitled to exercise all of their rights, powers,
discretions and remedies under or pursuant to the
Guarantee and/or any other rights, powers,
discretions or remedies which they would otherwise
have been entitled to exercise, as if no release,
settlement, discharge or arrangement had taken place.
8.4.3 Following the discharge of the Borrower's
Obligations, the Finance Parties shall be entitled to
retain any security which they may hold for the
liabilities of the Guarantor under the Guarantee
until the Finance Parties are satisfied in their
discretion that they will not have to make any
payment under any law referred to in Clause 8.4.2.
42
8.4.4 Until all claims of the Finance Parties in respect of
the Borrower's Obligations have been discharged in
full:-
(a) the Guarantor shall not be entitled to
participate in any security held or sums
received by any Finance Party in respect of
all or any part of the Borrower's
Obligations;
(b) the Guarantor shall not stand in the place
of, or be subrogated for, any of the Finance
Parties in respect of any security nor take
any step to enforce any claim against the
Borrower or any Surety (or the estate or
effects of any such person) nor claim or
exercise any right of set off or
counterclaim against the Borrower or any
Surety nor make any claim in the bankruptcy
or liquidation of the Borrower or any Surety
in respect of any sums paid by the Guarantor
to the Finance Parties or any of them or in
respect of any sum which includes the
proceeds of realisation of any security at
any time held by the Finance Parties or any
of them in respect of all or any part of the
Guarantor's Liabilities; and
(c) the Guarantor shall not take any steps to
enforce any claim which it may have against
the Borrower or any Security Party without
the prior written consent of the Agent, and
then only on such terms and subject to such
conditions as the Agent may impose.
8.4.5 The Guarantor's Liabilities shall be continuing for
all purposes (including Interest) and every sum of
money which may now or in the future be or become due
or owing to the Finance Parties by the Borrower under
the Security Documents to which the Borrower is a
party (or which would have become due or owing had it
not been for the bankruptcy, liquidation or
insolvency of the Borrower) shall be deemed to
continue due and owing to the Finance Parties by the
Borrower until such sum is actually repaid to the
Finance Parties, notwithstanding the bankruptcy,
liquidation or insolvency of the Borrower.
43
8.4.6 The Finance Parties may, but shall not be obliged to,
resort for their own benefit to any other means of
payment at any time and in any order they think fit
without releasing or reducing the Guarantor's
Liabilities.
8.4.7 The Finance Parties may enforce the Guarantee either
before or after resorting to any other means of
payment and, in the latter case, without entitling
the Guarantor to any benefit from or share in any
such other means of payment for so long as the
Borrower's Obligations have not been discharged in
full.
8.5 OTHER SECURITY
The Guarantor confirms that it has not taken and will not take
without the prior written consent of the Agent (and then only
on such terms and subject to such conditions as the Agent may
impose) any security from the Borrower or from any Surety in
connection with the Guarantee and any security taken by the
Guarantor in connection with the Guarantee notwithstanding
this Clause shall be held by the Guarantor in trust for the
Agent on behalf of the Finance Parties absolutely as a
continuing security for the Guarantor's Liabilities.
9 FEES
9.1 The Borrower shall pay to or to the order of the Agent the
fees, commissions and other sums referred to in the Fee
Letters in the amounts and on the dates set out in the Fee
Letters.
9.2 The Borrower shall pay to the Agent Commitment Commission at
the rate of one half of the applicable Margin per annum on any
undrawn part of the Facility after the Execution Date. The
Commitment Commission will accrue from day to day on the basis
of a 360 day year and the actual number of days elapsed and
shall be paid quarterly in arrears from the Execution Date
until the Termination Date based upon the Margin in effect for
the previous quarter.
44
9.3 The Borrower shall on the Execution Date pay to the Agent on
behalf of each Bank which is a party to this Agreement on the
Execution Date, a 0.25% flat fee on the amount of each such
Bank's Commitment.
10 SECURITY DOCUMENTS
As security for the repayment of the Indebtedness, the Borrower shall
execute and deliver to the Agent or cause to be executed and delivered
to the Agent, on or before the first Advance Date, the following
Security Documents in such forms and containing such terms and
conditions as the Agent shall require:-
10.1 THE MORTGAGES AND DEED OF COVENANTS a first preferred and/or
priority mortgage together, where applicable, with collateral
deed of covenants over each Vessel;
10.2 THE ASSIGNMENTS a deed of assignment of the Insurances,
Earnings and Requisition Compensation of each Vessel;
10.3 THE SHIPOWNERS' GUARANTEE the joint and several guarantee
and indemnity of the Shipowning Guarantors;
10.4 ANY INTER-COMPANY INDEBTEDNESS ASSIGNMENTS if applicable, a
deed of assignment of any Inter-Company Indebtedness
materially in the form set forth in Appendix B;
10.5 THE GENERAL SECURITY AGREEMENTS (i) a bond and floating charge
and assignation of insurances (ii) an assignment and charge,
or (iii) a security interest and assignment over each ROV, its
Earnings, Insurances and Requisition Compensation; and
10.6 THE FACTORING AGREEMENT a factoring agreement in relation to
the assignment of Earnings contained in the Assignment over mv
"SEAWAY FALCON" to be made between Xxxxx Comex Seaway A/S and
the Agent.
45
11 AGENCY AND TRUST
11.1 APPOINTMENT Each of the Banks and the Arrangers appoints the
Agent its agent for the purpose of administering the Facility
and the Security Documents and authorises the Agent and its
directors, officers, employees and agents acting on the
instructions from time to time of an Instructing Group, and
subject to Clauses 11.4 and 11.19, to execute the Security
Documents on its behalf and to exercise all rights, powers,
discretions and remedies vested in the Banks under or pursuant
to the Security Documents, together with all powers reasonably
incidental to them.
11.2 AUTHORITY Each of the Banks and the Arrangers irrevocably
authorises the Agent, acting on the instructions from time to
time of an Instructing Group:-
11.2.1 to give or withhold any consents or approvals; and
11.2.2 to exercise, or refrain from exercising, any
discretions; and
11.2.3 to collect, receive, release or pay any money;
under or pursuant to any of the Security Documents. In
addition the Agent may waive compliance by any Security Party
with Clauses 12.1.2, 12.1.3, 12.2.3, 12.2.9, 13.1 and 19.2.3
with the prior written consent of an Instructing Group. The
Agent shall have no duties or responsibilities as agent or as
security trustee other than those expressly conferred on it
by the Security Documents and shall not be obliged to act on
any instructions if to do so would, in the opinion of the
Agent, be contrary to any provision of the Security Documents
or to any law, or would expose the Agent to any actual or
potential liability to any third party.
11.3 TRUST The Agent agrees and declares, and each of the Banks
acknowledges, that, subject to the terms and conditions of
this Clause, the Agent holds the Trust Property on trust for
the Banks, in accordance with their respective Proportionate
Shares, absolutely. Each of the Banks agrees that the
obligations, rights and benefits vested in the Agent in its
capacity as security trustee shall be performed and exercised
in accordance with this Clause. The Agent in its
46
capacity as security trustee shall have the benefit of all of
the provisions of this Agreement benefitting it in its
capacity as agent for the Banks, and all the powers and
discretions conferred on trustees by the Trustee Xxx 0000 (to
the extent not inconsistent with this Agreement). In
addition:-
11.3.1 the Agent (and any attorney, agent or delegate of the
Agent) may indemnify itself or himself out of the
Trust Property against all liabilities, costs, fees,
damages, charges, losses and expenses sustained or
incurred by it or him in relation to the taking or
holding of any of the Trust Property or in connection
with the exercise or purported exercise of the
rights, trusts, powers and discretions vested in the
Agent or any other such person by or pursuant to the
Security Documents or in respect of anything else
done or omitted to be done in any way relating to the
Security Documents; and
11.3.2 the Banks acknowledge that the Agent shall be under
no obligation to insure any property nor to require
any other person to insure any property and shall not
be responsible for any loss which may be suffered by
any person as a result of the lack or insufficiency
of any insurance; and
11.3.3 the Agent and the Banks agree that the perpetuity
period applicable to the trusts declared by this
Agreement shall be the period of eighty years from
the Execution Date.
11.4 LIMITATIONS ON AUTHORITY Except with the prior written
consent of each of the Banks, the Agent shall not be entitled
to:-
11.4.1 release or vary any security given for the Borrower's
obligations under this Agreement; nor
11.4.2 except as otherwise provided in this Agreement, agree
to waive the payment of any sum of money payable by
any of the Security Parties under the Security
Documents or waive, modify, vary or otherwise
47
amend or excuse performance by any of the Security
Parties of any material provision of the Security
Documents; nor
11.4.3 change the meaning of the expression "INSTRUCTING
GROUP"; nor
11.4.4 exercise, or refrain from exercising, any discretion,
or give or withhold any consent, the exercise or
giving of which is, by the terms of this Agreement,
expressly reserved to the Banks; nor
11.4.5 extend the due date for the payment of any sum of
money payable by any of the Security Parties under
the Security Documents; nor
11.4.6 take or refrain from taking any step if the effect of
such action or inaction may lead to the increase of
the obligations of a Bank under any of the Security
Documents; nor
11.4.7 agree to change the currency in which any sum is
payable under the Security Documents (other than in
accordance with the terms of the Security Documents);
nor
11.4.8 agree to amend this Clause 11.4.
11.5 LIABILITY Neither the Agent nor any of its directors,
officers, employees or agents shall be liable to the Banks or
the Arrangers for anything done or omitted to be done by the
Agent under or in connection with the Security Documents
unless as a result of the Agent's wilful misconduct or gross
negligence.
11.6 ACKNOWLEDGMENT Each of the Banks and the Arrangers
acknowledges that:-
11.6.1 it has not relied on any representation made by the
Agent or any of the Agent's directors, officers,
employees or agents or by any other person acting
or purporting to act on behalf of the Agent to
induce it to enter into any of the Security
Documents;
48
11.6.2 it has made and will continue to make without
reliance on the Agent, and based on such documents
and other evidence as it considers appropriate, its
own independent investigation of the financial
condition and affairs of the Security Parties in
connection with the making and continuation of the
Facility;
11.6.3 it has made its own appraisal of the creditworthiness
of the Security Parties;
11.6.4 the Agent shall not have any duty or responsibility
at any time to provide it with any credit or other
information relating to any of the Security Parties
unless that information is received by the Agent
pursuant to the express terms of the Security
Documents.
Each of the Banks and the Arrangers agrees that it will not
assert nor seek to assert against any director, officer,
employee or agent of the Agent or against any other person
acting or purporting to act on behalf of the Agent any claim
which it might have against them in respect of any of the
matters referred to in this Clause.
11.7 LIMITATIONS ON RESPONSIBILITY The Agent shall have no
responsibility to any of the Security Parties or to the Banks
or to the Arrangers on account of:-
11.7.1 the failure of a Bank or of any of the Security
Parties to perform any of their respective
obligations under the Security Documents;
11.7.2 the financial condition of any of the Security
Parties;
11.7.3 the completeness or accuracy of any statements,
representations or warranties made in or pursuant to
any of the Security Documents, or in or pursuant to
any document delivered pursuant to or in connection
with any of the Security Documents;
49
11.7.4 the negotiation, execution, effectiveness,
genuineness, validity, enforceability, admissibility
in evidence or sufficiency of any of the Security
Documents or of any document executed or delivered
pursuant to or in connection with any of the Security
Documents.
11.8 THE AGENT'S RIGHTS The Agent may:-
11.8.1 assume that all representations or warranties made or
deemed repeated by any of the Security Parties in or
pursuant to any of the Security Documents are true
and complete, unless, in its capacity as the Agent,
it has acquired actual knowledge to the contrary; and
11.8.2 assume that no Event of Default or Potential Event of
Default has occurred unless, in its capacity as the
Agent, it has acquired actual knowledge to the
contrary; and
11.8.3 rely on any document or Communication believed by it
to be genuine; and
11.8.4 rely as to legal or other professional matters on
opinions and statements of any legal or other
professional advisers selected or approved by it; and
11.8.5 rely as to any factual matters which might reasonably
be expected to be within the knowledge of any of the
Security Parties on a certificate signed by or on
behalf of that Security Party; and
11.8.6 refrain from exercising any right, power, discretion
or remedy unless and until instructed to exercise
that right, power, discretion or remedy and as to the
manner of its exercise by the Banks (or, where
applicable, by an Instructing Group) and unless and
until the Agent has received from the Banks any
payment which the Agent may require on account of, or
any security which the Agent may require for, any
costs, claims, expenses (including legal and other
professional fees)
50
and liabilities which it considers it may incur or
sustain in complying with those instructions.
11.9 THE AGENT'S DUTIES The Agent shall:-
11.9.1 if requested in writing to do so by a Bank, make
enquiry and advise the Banks as to the performance or
observance of any of the provisions of the Security
Documents by any of the Security Parties or as to the
existence of an Event of Default; and
11.9.2 inform the Banks promptly of any Event of Default of
which the Agent has actual knowledge; and
11.9.3 inform the Banks promptly of any disclosures in
writing received by the Agent pursuant to Clause 4.7.
11.10 NO DEEMED KNOWLEDGE The Agent shall not be deemed to have
actual knowledge of the falsehood or incompleteness of any
representation or warranty made or deemed repeated by any of
the Security Parties or actual knowledge of the occurrence of
any Event of Default or Potential Event of Default unless a
Bank or any of the Security Parties shall have given written
notice thereof to the Agent.
11.11 OTHER BUSINESS The Agent may, without any liability to account
to the Banks or the Arrangers, generally engage in any kind of
banking or trust business with any of the Security Parties or
any of their respective Subsidiaries or associated companies
or with a Bank as if it were not the Agent.
11.12 INDEMNITY The Banks shall, promptly on the Agent's request,
reimburse the Agent in their respective Proportionate Shares,
for, and keep the Agent fully indemnified in respect of:-
11.12.1 all amounts payable by the Borrower to the Agent
pursuant to Clause 19 to the extent that those
amounts are not paid by the Borrower;
51
11.12.2 all liabilities, damages, costs and claims sustained
or incurred by the Agent in connection with the
Security Documents, or the performance of its duties
and obligations, or the exercise of its rights,
powers, discretions or remedies under or pursuant to
any of the Security Documents; or in connection with
any action taken or omitted by the Agent under or
pursuant to any of the Security Documents, unless in
any case those liabilities, damages, costs or claims
arise solely from the Agent's wilful misconduct or
gross negligence.
11.13 EMPLOYMENT OF AGENTS In performing its duties and exercising
its rights, powers, discretions and remedies under or pursuant
to the Security Documents, the Agent shall be entitled to
employ and pay agents to do anything which the Agent is
empowered to do under or pursuant to the Security Documents
(including the receipt of money and documents and the payment
of money) and to act or refrain from taking action in reliance
on the opinion of, or advice or information obtained from, any
lawyer, banker, broker, accountant, valuer or any other person
believed by the Agent in good faith to be competent to give
such opinion, advice or information.
11.14 DISTRIBUTION OF PAYMENTS The Agent shall pay promptly to the
order of each of the Banks that Bank's Proportionate Share of
every sum of money received by the Agent pursuant to the
Security Documents or the Mortgagees' Insurances (with the
exception of any amounts payable pursuant to Clause 9.1 and/or
the Fee Letters and any amounts which, by the terms of the
Security Documents, are paid to the Agent for the account of
the Agent or the Syndication Agent alone or specifically for
the account of one or more Banks or Arrangers) and until so
paid such amount shall be held by the Agent on trust
absolutely for that Bank, that Arranger or the Syndication
Agent (or as the case may be).
11.15 REIMBURSEMENT The Agent shall have no liability to pay any sum
to a Bank or to an Arranger or the Syndication Agent until it
has itself received payment of that sum. If, however, the
Agent does pay any sum to a Bank or to an Arranger or the
Syndication Agent on account of any amount prospectively due
to it
52
pursuant to Clause 11.14 before it has itself received
payment of that amount, and the Agent does not in fact receive
payment within five Business Days after the date on which that
payment was required to be made by the terms of the Security
Documents or the Mortgagees' Insurances, the recipient will,
on demand by the Agent, refund to the Agent an amount equal to
the amount received by it, together with an amount sufficient
to reimburse the Agent for any amount which the Agent may
certify that it has been required to pay by way of interest on
money borrowed to fund the amount in question during the
period beginning on the date on which that amount was required
to be paid by the terms of the Security Documents or the
Mortgagees' Insurances and ending on the date on which the
Agent receives reimbursement.
11.16 REDISTRIBUTION OF PAYMENTS Unless otherwise agreed between the
Finance Parties, if at any time a Bank receives or recovers by
way of set-off, the exercise of any lien or otherwise (other
than from any assignee or transferee of or sub-participant in
that Bank's Commitment), an amount greater than that Bank's
Proportionate Share of any sum due from any of the Security
Parties under the Security Documents (the amount of the excess
being referred to in this Clause as the "EXCESS AMOUNT")
then:-
11.16.1 that Bank shall promptly notify the Agent (which
shall promptly notify each other Bank);
11.16.2 that Bank shall pay to the Agent an amount equal to
the Excess Amount within ten days of its receipt or
recovery of the Excess Amount; and
11.16.3 the Agent shall treat that payment as if it were a
payment by the Security Party in question on account
of the sum owed to the Banks as aforesaid and shall
account to the Banks in respect of the Excess Amount
in accordance with the provisions of this Clause.
However, if a Bank has commenced any Proceedings to recover
sums owing to it under the Security Documents and, as a result
of, or in connection with, those
53
Proceedings has received an Excess Amount, the Agent shall not
distribute any of that Excess Amount to any other Bank which
had been notified of the Proceedings and had the legal right
to, but did not, join those Proceedings or commence and
diligently prosecute separate Proceedings to enforce its
rights in the same or another court.
11.17 RESCISSION OF EXCESS AMOUNT If all or any part of any Excess
Amount is rescinded or must otherwise be restored to any of
the Security Parties or to any other third party, the Banks
which have received any part of that Excess Amount by way of
distribution from the Agent pursuant to this Clause shall
repay to the Agent for the account of the Bank which
originally received or recovered the Excess Amount, the amount
which shall be necessary to ensure that the Banks share
rateably in accordance with their Proportionate Shares in the
amount of the receipt or payment retained, together with
interest on that amount at a rate equivalent to that (if any)
paid by the Bank receiving or recovering the Excess Amount to
the person to whom that Bank is liable to make payment in
respect of such amount, and Clause 11.16.3 shall apply only to
the retained amount.
11.18 PROCEEDINGS Each of the Finance Parties shall notify one
another of the proposed commencement of any Proceedings under
any of the Security Documents prior to their commencement. No
such Proceedings may be commenced without the prior written
consent of an Instructing Group.
11.19 INSTRUCTIONS Where the Agent is authorised or directed to act
or refrain from acting in accordance with the instructions of
the Banks or of an Instructing Group each of the Banks shall
provide the Agent with instructions within three Business Days
of the Agent's request (which request may be made orally or in
writing). If a Bank does not provide the Agent with
instructions within that period, that Bank shall be bound by
the decision of the Agent. Nothing in this Clause shall limit
the right of the Agent to take, or refrain from taking, any
action without obtaining the instructions of the Banks if the
Agent in its discretion considers it necessary or appropriate
to take, or refrain from taking, such action in order to
preserve the rights of the Banks under or in connection
54
with the Security Documents. In that event, the Agent will
notify the Banks of the action taken by it as soon as
reasonably practicable, and the Banks agree to ratify any
action taken by the Agent pursuant to this Clause.
11.20 COMMUNICATIONS Any Communication under this Clause shall be
given, delivered, made or served, in the case of the Agent (in
its capacity as Agent or as one of the Banks), and in the case
of the other Banks, at the address indicated in Schedule 1.
11.21 PAYMENTS All amounts payable to a Bank under this Clause shall
be paid to such account at such bank as that Bank may from
time to time direct in writing to the Agent.
11.22 RETIREMENT Subject to a successor being appointed in
accordance with this Clause, the Agent may retire as agent
and/or security trustee at any time without assigning any
reason by giving to the Borrower and the other Finance Parties
notice of its intention to do so, in which event the following
shall apply:-
11.22.1 with the consent of the Borrower, not to be
unreasonably withheld, the other Finance Parties may
within thirty days after the date of the Agent's
notice appoint a successor to act as agent and/or
security trustee or, if they fail to do so with the
consent of the Borrower, not to be unreasonably
withheld, the Agent may appoint any other bank or
financial institution as its successor;
11.22.2 the resignation of the Agent shall take effect
simultaneously with the appointment of its successor
on written notice of that appointment being given to
the Borrower and the other Finance Parties;
11.22.3 the Agent shall thereupon be discharged from all
further obligations as agent and/or security trustee
but shall remain entitled to the benefit of the
provisions of this Clause;
55
11.22.4 the Agent's successor and each of the other parties
to this Agreement shall have the same rights and
obligations amongst themselves as they would have had
if that successor had been a party to this Agreement.
11.23 NO FIDUCIARY RELATIONSHIP Except as provided in Clauses 11.3
and 11.14, the Agent shall not have any fiduciary relationship
with or be deemed to be a trustee of or for a Bank or an
Arranger and nothing contained in any of the Security
Documents shall constitute a partnership between any two or
more Banks or Arrangers or between the Agent and any Bank or
Arranger.
11.24 THE AGENT AS A BANK The expression "THE BANKS" when used in
the Security Documents includes the Agent in its capacity as
one of the Banks. The Agent shall be entitled to exercise its
rights, powers, discretions and remedies under or pursuant to
the Security Documents in its capacity as one of the Banks in
the same manner as any other Bank and as if it were not also
the Agent.
11.25 THE AGENT AS SECURITY TRUSTEE Unless the context otherwise
requires, the expression "THE Agent" when used in the Security
Documents includes the Agent acting in its capacities both as
agent and security trustee.
11.26 SYNDICATION AGENT Each of the Finance Parties agrees, for the
avoidance of doubt, that the Syndication Agent has no duties
in its capacity as Syndication Agent under the Security
Documents.
12 COVENANTS
Each of the Borrower and the Guarantor covenants with the Finance
Parties in the following terms.
12.1 NEGATIVE COVENANTS
Neither the Borrower nor the Guarantor, will:-
12.1.1 NO THIRD PARTY RIGHTS without the Banks' prior
written consent, save for Permitted Liens, secure any
debt or guarantee obligation on any
56
Vessel or ROV or any other asset secured in favour
of the Finance Parties or any of them under the
Security Documents nor permit any Security Party or
any other member of the SCS Group to create or permit
to arise or subsist any Encumbrance of whatever
nature upon any amount due from time to time during
the Facility Period to that Security Party or any
other member of the SCS Group except any Encumbrance
existing on the date of this Agreement and notified
to the Agent and listed in Appendix D; nor
12.1.2 CHARTERING without the prior written consent of an
Instructing Group, charter any Vessel or permit any
Vessel to be chartered on any bareboat charter, or
otherwise for a period exceeding (or inclusive of any
extension options, capable or exceeding) twelve (12)
months) or following the occurrence and during the
continuation of an Event of Default, let any Vessel
on charter or renew or extend any charter or other
contract of employment of any Vessel (nor agree to do
so) provided that committing the use of a Vessel with
respect to any service shall not be regarded as a
charter within the meaning of this Clause unless such
Vessel is committed for a consecutive period of not
less than twelve (12) months on a time charter; nor
12.1.3 NO CHANGE IN MANAGEMENT without the prior written
consent of an Instructing Group, permit the
appointment of anyone other than the Managers as
commercial or technical managers of the Vessels, nor
terminate or materially vary the arrangements for the
commercial or technical management of the Vessels,
nor permit the Managers to sub-contract or delegate
the commercial or technical management of any Vessel
to any third party outside of the SCS Group; nor
12.1.4 MERGER OR AMALGAMATION without the prior written
consent of an Instructing Group, permit any merger or
amalgamation unless (i) the Guarantor, the Borrower
and each Shipowning Guarantor remains the surviving
entity following any such merger or amalgamation (or
if the merger or amalgamation involves more than one
of the Shipowning
57
Guarantors, then one of the Shipowning Guarantors
remains the surviving entity) and (ii) such surviving
entity is not divested of any material part of the
assets or operations of such member of the SCS Group
and (iii) in the case of the Guarantor only, such
merger or amalgamation has been approved by a duly
passed resolution of the Guarantor's shareholders.
12.2 POSITIVE COVENANTS
12.2.1 REGISTRATION OF VESSELS Each of the Borrower and the
Guarantor undertakes to procure the maintenance of
the registration of the Vessels under the flags and
ownerships indicated in Schedule 3 for the duration
of the Facility Period unless otherwise approved by
the Agent.
12.2.2 ADDITIONAL SECURITY If and so often as the aggregate
of any Valuations of the Vessels and the ROVs plus
the value of any additional security (other than
cash) for the time being provided to the Banks (or to
the Agent on their behalf) pursuant to this Clause
shall be less than one hundred and twenty per centum
(120%) of the Original Dollar Amount (less the amount
of any cash deposited as additional security pursuant
to this Clause) the Borrower will, within thirty days
of the request of the Agent to do so, at the
Borrower's option:-
(a) pay to the Agent or to its nominee a cash
deposit in the amount of the shortfall to be
secured in favour of the Banks (or of the
Agent on their behalf) as additional
security for the payment of the
Indebtedness; or
(b) give to the Banks (or to the Agent on their
behalf) other additional security in amount
and form acceptable to the Banks in their
discretion; or
58
(c) prepay the amount of the Indebtedness which
will ensure that the aggregate of the
Valuations of the Vessels and the ROVs plus
the value of any such additional security
(other than cash) is not less than one
hundred and twenty per centum (120%) of the
Original Dollar Amount (less the amount of
any cash deposited as additional security
pursuant to this Clause).
Clauses 6.3, 6.4 and 6.5 shall apply, mutatis
mutandis, to any prepayment made pursuant to this
Clause and the value of any additional security
provided pursuant to this Clause shall be determined
by the Agent in its discretion. Provided that, where
the Borrower has provided additional security
pursuant to this Clause, the Borrower may request
that the Agent obtain new Valuations on a date
falling not earlier than six months after the date
such additional security was provided. Where
requested by the Borrower to obtain new Valuations
pursuant to this Clause the Agent shall obtain such
new Valuations at the cost and expense of the
Borrower. If the aggregate of the new Valuations of
the Vessels and the ROV's plus the value of any
additional security (other than cash) (the "NEW
SECURITY AMOUNT") is greater than one hundred and
twenty per cent (120%) of the Original Dollar Amount
(less the amount of any cash deposited as additional
security pursuant to this Clause) (the "SECURITY
MAINTENANCE AMOUNT") the Agent (provided that the
Agent shall firstly release any cash collateral
deposited with it pursuant to this Clause) shall
release to the Borrower, upon the Borrower's written
request and at the Borrower's expense, any such
additional security as the Agent selects, such that
after its release the New Security Amount will be
equal to the Security Maintenance Amount, provided,
however, that the value of such security to be
released is not less than five hundred thousand
Dollars ($500,000). For the purposes of this Clause
the Borrower shall at its expense throughout the
Facility Period deliver to the Agent a Valuation in
respect of each Vessel and each ROV (i) at least
annually after the Execution Date and (ii) at any
time reasonably requested by the Agent.
59
12.2.3 FINANCIAL STATEMENTS The Borrower will supply to the
Agent, without request:-
(a) its annual unaudited financial statements for
each financial year of the Borrower ending
during the Facility Period, containing
(amongst other things) the Borrower's profit
and loss account for, and balance sheet at
the end of, each such financial year,
prepared in accordance with generally
accepted accounting principles and practices
applicable to companies incorporated in the
Netherlands consistently applied, in each
case within one hundred and eighty days of
the end of the financial year to which they
relate and such financial statements shall
accurately and fairly represent the financial
condition of the Borrower; and
(b) on a consolidated basis:-
(i) the Guarantor's annual audited accounts
prepared in accordance with US GAAP
within one hundred and eighty days of
the end of the financial year to which
they relate and such financial
statements shall accurately and fairly
represent the financial condition of
the SCS Group; and
(ii) the Guarantor's unaudited quarterly
financial statements (including cash
flow analysis) not later than 90
days after the end of the relevant
fiscal quarter; and
(c) the SCS Group's consolidated budget; and
(d) any financial information delivered by the
Guarantor to its shareholders; and
60
(e) on a non-consolidated basis and if reasonably
required by the Agent and the company
concerned is obliged by law or otherwise to
prepare accounts, the annual unaudited
accounts of each of the Shipowning Guarantors
within one hundred and eighty days of the end
of the financial year to which they relate;
(f) a statement of the aggregate amount due at
any time to the SCS Group at least once every
twelve months during the Facility Period; and
(g) a cash flow projection for the following five
years to be provided every six months during
the Facility Period; and
(h) a list and broad description of all contracts
with a value in excess of two million Dollars
($2,000,000) to be performed by any member of
the SCS Group, to be provided every six
months during the Facility Period, such
information to be in the form set forth in
Appendix C.
12.2.4 OTHER INFORMATION The Borrower will promptly supply
to the Agent copies of all financial and other
information from time to time given by the Guarantor
to its shareholders and such information and
explanations as the Agent may from time to time
reasonably require in connection with the operation
of the Vessels and the ROVs and the Borrower's and
the Guarantor's profit and liquidity, and will
procure that the Agent be given the like information
and explanations relating to all other Security
Parties.
12.2.5 EVIDENCE OF CURRENT COFR Without limiting the
Borrower's obligations under Clause 12.2.4, the
Borrower will from time to time on the request of the
Agent provide the Agent with such evidence as the
Agent may reasonably require that each Vessel
operating in the waters of the United States of
America has a valid and current
61
Certificate of Financial Responsibility pursuant to
the United States Oil Pollution Xxx 0000.
12.2.6 ISM CODE COMPLIANCE In respect of each Vessel at any
time subject to the ISM Code the Borrower will:-
(a) procure that the Vessel remains for the
duration of the Facility Period subject to a
SMS;
(b) maintain a valid and current SMC for the
Vessel throughout the Facility Period;
(c) if it is not itself the Company, procure that
the Company maintains a valid and current DOC
throughout the Facility Period;
(d) promptly report to the Agent in writing of
any actual or threatened withdrawal,
suspension, cancellation or modification of
the Vessel's SMC or of the Company's DOC;
(e) promptly report to the Agent in writing (i)
any accident involving a Vessel which may
result in that Vessel's insurers making
payment directly to the Agent in accordance
with the relevant Security Documents or (ii)
any "MAJOR NON-CONFORMITY", as that term is
defined in the Guidelines on the
Implementation of the International Safety
Management Code by Administrations adopted by
the Assembly of the International Maritime
Organisation pursuant to Resolution
A.788(19), and of the steps being taken to
remedy the situation; and
(f) not without the prior written consent of the
Agent (which will not be unreasonably
withheld) change the identity of the Company.
62
12.2.7 GUARANTOR'S PUBLIC LISTING Each of the Borrower and
the Guarantor shall ensure that throughout the
Facility Period the Guarantor shall remain a public
listed company unless it is owned by significant and
recognised corporate bodies approved by the Banks
with a corporate rating of at least BBB as defined by
Standard & Poor's or similar rating from a rating
agency acceptable to the Banks.
12.2.8 INSURANCES The Borrower shall ensure that each of the
Vessels and the ROVs is fully insured upon the terms
and conditions set forth in the Mortgages, Deed of
Covenant or the relevant General Security Agreement
(as the case may be). In addition, each of the
Borrower and the Guarantor shall ensure that its
property and assets are insured against such risks
and in such amounts as are customary for companies
engaged in similar businesses.
12.2.9 CLASSIFICATION The Borrower shall ensure that each
Vessel (other than a Non-Classified Vessel) is
classed and maintained with the highest applicable
class necessary to properly operate such Vessel of
Lloyds Register of Shipping, Det norske Veritas, the
American Bureau of Shipping or such other
classification society acceptable to the Agent and
that such classification is not changed or impaired
in any way during the Facility Period.
12.2.10 CERTIFICATE OF COMPLIANCE The Borrower and the
Guarantor shall deliver to the Agent a duly executed
Certificate of Compliance ninety (90) days after the
end of each fiscal quarter occurring during the
Facility Period.
12.2.11 INSPECTION OF RECORDS The Borrower and the Guarantor
will each permit the inspection of its financial
records and accounts from time to time during
business hours by the Agent or its nominee.
63
12.2.12 MILLENNIUM COMPLIANCE Each of the Borrower and the
Guarantor will:-
(a) use all reasonable endeavours to ensure that
the performance and functionality of its
Systems and each Vessel's and ROV's Systems
are, by no later than 30 November 1999, and
remain Millennium Compliant;
(b) notify the Agent immediately if at any time
either the Borrower or the Guarantor knows or
reasonably suspects that the performance or
functionality of any of its Systems or any of
Vessels' or ROV's Systems is, or will not be,
Millennium Compliant, in a manner which will
materially adversely affect the SCS Group as
a whole.
12.2.13 NOTIFICATION OF EVENT OF DEFAULT Each of the Borrower
and the Guarantor will immediately notify the Agent
in writing of the occurrence of any Event of Default
or Potential Event of Default or any event which will
materially adversely affect the Borrower's or the
Guarantor's ability to perform its obligations under
this Agreement or the ability of any of the other
Security Parties or any Principal Subsidiary to
perform any of their obligations under any of the
Security Documents to which they are a party or may
become a party to.
12.2.14 ADDITIONAL FILINGS/NOTIFICATION Each of the Borrower
and the Guarantor shall ensure that (i) any and all
additional filings referred to in the proviso to
Clause 4.5 will be made and/or effected promptly and
within any applicable time limits imposed by law and
(ii) the Agent is immediately notified if any of the
Security Parties (a) has an established place of
business in the United Kingdom or the United States
of America at any time during the Facility Period or
(b) changes the place of US Chief Executive office or
principal place of business in the United States of
America.
64
12.2.15 PARI PASSU Each of the Borrower and the Guarantor
shall ensure that their respective obligations under
this Agreement shall at all times rank at least pari
passu with all of their other present and future
unsecured and unsubordinated indebtedness with the
exception of any obligations which are mandatorily
preferred by any applicable laws to companies
generally and not by contract.
12.2.16 CORPORATE EXISTENCE Save as permitted by Clause
12.1.4, each of the Borrower and the Guarantor shall
ensure that throughout the Facility Period each of
the Security Parties shall (i) remain duly formed and
validly existing under the laws of its respective
jurisdiction of incorporation (ii) remain authorised
to do business in the jurisdiction in which it
transacts its business (iii) continue to have the
power to carry on its business as it is now being
conducted and to enter into and perform its
obligations under the Security Documents to which it
is a party and (iv) continue to comply with all
statutory, regulatory and other requirements relative
to its business which could reasonably be expected to
have a material adverse effect on its business,
assets or operations, financial or otherwise.
12.2.17 ADMISSIBILITY IN EVIDENCE Each of the Borrowers and
the Guarantor shall on the request of the Agent
obtain all necessary authorisations, consents,
approvals, licences, exemptions, filings,
registrations, recordings and notarisations required
or advisable in connection with the admissibility in
evidence of the Security Documents or any of them in
Proceedings in England or any other jurisdiction in
which Proceedings have been commenced.
12.2.18 US COAST GUARD CERTIFICATES The Borrower shall ensure
that each US Coast Guard Inspected Vessel has a valid
and current certificate of inspection issued by the
U.S. Coast Guard, throughout the Facility Period.
65
12.2.19 FINANCE COMPANY STATUS The Borrower will ensure that
throughout the Facility Period the Borrower will
comply with the regulations of the Netherlands
Ministry of Finance dated 4 February 1993 with
respect to finance companies to ensure that the
Borrower remains a finance company in accordance with
these regulations. The Borrower will also ensure that
throughout the Facility Period all notice
requirements to the Dutch Central Bank pursuant to
the Foreign Financial Relations Act ("Wet Financiele
Xxxxxxxxxxxx Xxxxxxxxxx") 0000, are complied with.
12.3 GUARANTOR'S FINANCIAL COVENANTS
12.3.1 Throughout the Facility Period the Guarantor shall:-
(a) maintain a Consolidated Tangible Net Worth of
not less than $250,000,000 PLUS 50% of
consolidated net income (to the extent
positive) for each fiscal year from and after
30 November 1999;
(b) maintain a Consolidated Debt to Consolidated
Tangible Net worth ratio of a maximum of
1.25:1 as calculated at the end of each
fiscal quarter ending 31 August and a maximum
of 1.0:1 as calculated quarterly at the end
of each fiscal quarter ending on the last day
of February, May and November;
(c) on a rolling four fiscal quarter basis,
maintain a D/EBITDA ratio of a maximum of
3.5:1 during the first three (3) years of the
Facility Period, reducing to a maximum of
3.25:1 on the third anniversary of the
Execution Date and a maximum of 3.0:1 on the
fourth anniversary of the Execution Date; and
(d) ensure that any inter-company debt due from
SNSA or any of its Subsidiaries (not
including the SCS Group) to the SCS Group
does not at any one time exceed thirty
million Dollars
66
($30,000,000) in aggregate or
its equivalent amount in another currency.
12.3.2 Immediately on any Inter-Company Indebtedness coming
into effect the Guarantor shall duly authorise,
execute and deliver to the Agent an Inter-Company
Indebtedness Assignment.
12.3.3 The Guarantor shall apply at least up to fifty per
cent (50%) of the net proceeds of any Guarantor's
Capital Markets Issue towards prepayment of the
Facility Outstandings where required in accordance
with Clause 2.4.3.
13 EARNINGS
13.1 REMITTANCE OF EARNINGS Immediately upon the occurrence of an
Event of Default, the Borrower shall procure that all Earnings
are paid to such account(s) as the Agent shall from time to
time specify by notice in writing to the Borrower.
14 EVENTS OF DEFAULT
14.1 THE AGENT'S RIGHTS If any of the events set out in Clause 14.2
occurs, and such event remains unremedied for fourteen (14)
days after notice thereof has been given by the Agent to the
Borrower (except in relation to any of the events described in
Clauses 14.2.1, 14.2.2, 14.2.4, 14.2.6 and 14.2.18 where such
remedy period shall not apply) the Agent may at its discretion
by notice to the Borrower declare the Banks to be under no
further obligation to the Borrower under or pursuant to this
Agreement and may declare all or any part of the Indebtedness
(including such unpaid interest as shall have accrued) to be
immediately payable, whereupon the Indebtedness (or the part
of the Indebtedness referred to in the Agent's notice) shall
immediately become due and payable without any further demand
or notice of any kind.
14.2 EVENTS OF DEFAULT The events referred to in Clause 14.1 are:-
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14.2.1 PAYMENT DEFAULT if the Borrower defaults in the
payment of any part of the Indebtedness when due; or
14.2.2 OTHER DEFAULT if any of the Security Parties fails to
observe or perform any of the covenants, conditions,
undertakings, agreements or obligations on its part
contained in any of the Security Documents or shall
in any other way be in breach of or do or cause to be
done any act repudiating or evidencing an intention
to repudiate any of the Security Documents and such
default (if in the reasonable opinion of the
Instructing Group capable of remedy) is not remedied
within fourteen (14) days after notice of the default
has been given to the Borrower; or
14.2.3 MISREPRESENTATION OR BREACH OF WARRANTY if any
representation, warranty or statement made, deemed to
be made, or repeated under any of the Security
Documents or in any accounts, certificate, notice
instrument, written statement or opinion delivered by
a Security Party under or in connection with any
Security Document is incorrect in any material
respect when made, deemed to be made or repeated; or
14.2.4 EXECUTION if a distress or execution or other process
of a court or authority is levied on any of the
property of any of the Security Parties or any of the
Principal Subsidiaries before or after final judgment
or by order of any competent court or authority for
an amount in excess of ten million Dollars
($10,000,000) or, its equivalent in any other
currency and is not satisfied or stayed (with a view
to being contested in good faith) within fourteen
days of levy; or
14.2.5 INSOLVENCY EVENTS if any of the Security Parties or
any of the Principal Subsidiaries:-
(a) resolves to appoint, or applies for, or
consents to the appointment of, a receiver,
administrative receiver, trustee,
administrator or liquidator of itself or of
all or part of its assets
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other than for the purposes of a merger or
amalgamation pursuant to Clause 12.1.4; or
(b) is unable or admits its inability to pay its
debts as they fall due; or
(c) makes a general assignment for the benefit of
creditors; or
(d) ceases trading or threatens to cease trading;
or
(e) has appointed an Inspector under the
Companies Xxx 0000 or any statutory provision
which the Agent in its discretion considers
analogous thereto; or
14.2.6 INSOLVENCY PROCEEDINGS if any proceedings are
commenced or threatened, or any order or judgment is
given by any court, for the bankruptcy, liquidation,
winding up, administration or re-organisation of any
of the Security Parties or any of the Principal
Subsidiaries or for the appointment of a receiver,
administrative receiver, administrator, liquidator or
trustee of any of the Security Parties or any of the
Principal Subsidiaries or of all or part of the
assets of any of the Security Parties or any of the
Principal Subsidiaries, or if any person appoints or
purports to appoint such receiver, administrative
receiver, administrator, liquidator or trustee which
proceeding is not discharged within thirty (30) days
of its commencement; or
14.2.7 IMPOSSIBILITY OR ILLEGALITY unless covered by Clause
17.7, if any event occurs which would, or would with
the passage of time, render performance of any of the
Security Documents impossible, unlawful or
unenforceable by the Banks or the Agent; or
14.2.8 CONDITIONS SUBSEQUENT if any of the conditions set
out in Clause 3.2 is not satisfied within the time
reasonably required by the Agent with respect to the
conditions referred to at Clauses 3.2.1-3.2.5
inclusive
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and within twelve (12) months with respect
to the condition referred to at Clause 3.2.6 except
where such condition has not been satisfied due to an
act or omission on the part of a Finance Party; or
14.2.9 REVOCATION OR MODIFICATION OF CONSENTS ETC. if any
consent, licence, approval or authorisation which is
now or which at any time during the Facility Period
becomes necessary to enable any of the Security
Parties to comply with any of their obligations in or
pursuant to any of the Security Documents is revoked,
withdrawn or withheld, or modified in a manner which
the Agent reasonably considers is, or may be,
prejudicial to the interests of the Banks in a
material manner, or any material consent, licence,
approval or authorisation ceases to remain in full
force and effect; or
14.2.10 CURTAILMENT OF BUSINESS if the business of any of the
Security Parties is wholly or partially curtailed by
any intervention by or under authority of any
government, or if all or a substantial part of the
undertaking, property or assets of any of the
Security Parties is seized, nationalised,
expropriated or compulsorily acquired by or under
authority of any government or any Security Party
disposes or threatens to dispose of a substantial
part of its business or assets; or
14.2.11 LOSS OF VESSEL if any Vessel, or any such other
vessel which may from time to time be mortgaged to
the Banks (or to the Agent on their behalf) as
security for the repayment of all or any part of the
Indebtedness is destroyed, abandoned, confiscated,
forfeited, condemned as prize or becomes a Total
Loss, except that a Total Loss shall not be an Event
of Default if:-
(a) such Vessel or such other vessel (as the case
may be) is insured in accordance with the
Security Documents; and
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(b) no insurer has refused to meet or has
disputed the claim for Total Loss and it is
not apparent to the Agent in its discretion
that any such refusal or dispute is likely to
occur; and
(c) payment of all insurance proceeds in respect
of the Total Loss (as required by Clause
6.6.) is made in full to the Agent on behalf
of the Banks in accordance with Clause 6.6;
or
14.2.12 ACCELERATION OF OTHER INDEBTEDNESS if any other
indebtedness or obligation for borrowed money of any
of the Security Parties or any Principal Subsidiary
becomes due or capable of being declared due prior to
its stated maturity by reason of default on the part
of that Security Party or Principal Subsidiary (as
the case may be), or is not repaid or satisfied at
maturity save for amounts of less than two million
five hundred thousand Dollars ($2,500,000), or its
equivalent in any other currency, and claims
contested in good faith; or
14.2.13 REDUCTION OF CAPITAL if any of the Security Parties
except the Guarantor reduces its authorised or issued
or subscribed capital except reductions effected in
compliance with Clause 12.1.4; or
14.2.14 CHALLENGE TO REGISTRATION if the registration of any
Vessel or any ROV or any Mortgage or any General
Security Assignment becomes void or voidable or
liable to cancellation or termination; or
14.2.15 WAR if the country of registration of any Vessel or
ROV becomes involved in war (whether or not declared)
or civil war or is occupied by any other power and
the Agent reasonably considers that, as a result, the
security conferred by the Security Documents is
materially prejudiced; or
14.2.16 NOTICE OF TERMINATION if the Guarantor or any
Shipowning Guarantor gives notice to the Agent to
determine its obligations under the Guarantee or the
Shipowner's Guarantee, as appropriate; or
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14.2.17 CLAIM AGAINST THE GUARANTOR'S ASSETS except for
Permitted Liens, if a maritime or other lien, arrest
distress or similar charge is levied upon or against
any Vessel or any substantial part of the assets of
the Guarantor (on a consolidated basis) and such is
not discharged within fourteen (14) Business Days
after any Security Party or Principal Subsidiary (as
the case may be) has become aware of the same; or
14.2.18 GUARANTOR'S BUSINESS if all or a substantial part of
the Guarantor's business is destroyed, abandoned,
seized, appropriated or forfeited for any reason; or
14.2.19 OWNERSHIP if the Borrower ceases to be 100% directly
owned by Xxxxx Comex Seaway A/S and/or indirectly
owned by the Guarantor; or
14.2.20 FINAL JUDGEMENTS if any of the Security Parties fails
to comply with any non appealable court order or
fails to pay a final unappealable judgement against
it in excess of ten million Dollars ($10,000,000).
15 SET-OFF AND LIEN
15.1 SET-OFF Each of the Borrower and the Guarantor irrevocably
authorises the Finance Parties at any time after all or any
part of the Indebtedness shall have become due and payable to
set off without notice any liability of the Borrower or the
Guarantor (as the case may be) to any of the Finance Parties
(whether present or future, actual or contingent, and
irrespective of the branch or office, currency or place of
payment) against any credit balance from time to time standing
on any account of the Borrower or the Guarantor (as the case
may be) (whether current or otherwise and whether or not
subject to notice) with any branch of any of the Finance
Parties in or towards satisfaction of the Indebtedness and, in
the name of that Finance Party, the Borrower or the Guarantor
(as the case may be), to do all acts (including, without
limitation, converting or exchanging any currency) and execute
all documents which may be required to effect such
application.
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15.2 LIEN If an Event of Default has occurred and is continuing,
each Finance Party shall have a lien on and be entitled to
retain and realise as additional security for the repayment of
the Indebtedness any cheques, drafts, bills, notes or
negotiable or non-negotiable instruments and any stocks,
shares or marketable or other securities and property of any
kind of the Borrower or the Guarantor (or of that Finance
Party as agent or nominee of the Borrower or the Guarantor)
from time to time held by that Finance Party, whether for safe
custody or otherwise.
15.3 RESTRICTIONS ON WITHDRAWAL Despite any term to the contrary in
relation to any deposit or credit balance at any time on any
account of the Borrower or the Guarantor (as the case may be)
with any of the Finance Parties, no such deposit or balance
shall be repayable or capable of being assigned, mortgaged,
charged or otherwise disposed of or dealt with by the Borrower
or the Guarantor (as the case may be) after an Event of
Default has occurred and while such Event of Default is
continuing, but any Finance Party may from time to time permit
the withdrawal of all or any part of any such deposit or
balance without affecting the continued application of this
Clause.
15.4 APPLICATION Whilst an Event of Default is continuing, each of
the Borrower and the Guarantor irrevocably authorises the
Agent to apply all sums which the Agent may receive:-
15.4.1 pursuant to a sale or other disposition of a Vessel
or any right, title or interest in a Vessel; or
15.4.2 by way of payment to the Agent of any sum in respect
of the Insurances, Earnings or Requisition
Compensation of a Vessel or ROV (as the case may be);
or
15.4.3 otherwise arising under or in connection with any of
the Security Documents
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in or towards satisfaction, or by way of retention on
account, of the Indebtedness, in such manner as the
Agent may in its discretion determine.
16 ASSIGNMENT AND SUB-PARTICIPATION
16.1 RIGHT TO ASSIGN Each of the Banks may assign or transfer all
or any of its rights under or pursuant to the Security
Documents to any other branch of that Bank or to any other
bank or financial institution, and may grant
sub-participations in all or any part of its Commitment
provided that the Borrower and the Agent consent to such
assignment or transfer (such consent not to be unreasonably
withheld or delayed) and such assignment or transfer does not
result in the Borrower being subject to any additional Tax or
other financial or legal obligations other than those
contemplated by the terms of this Agreement.
16.2 BORROWER'S CO-OPERATION Each of the Borrower and the Guarantor
will co-operate fully with the Banks in connection with any
assignment, transfer or sub-participation pursuant to Clause
16.1; will execute and procure the execution of such documents
as the Banks may require in connection therewith; and
irrevocably authorises each of the Finance Parties to disclose
to any proposed assignee, transferee or sub-participant
(whether before or after any assignment, transfer or
sub-participation and whether or not any assignment, transfer
or sub-participation shall take place) all information
relating to the Security Parties, the Facility or the Security
Documents which the each such Finance Party may in its
discretion consider necessary or desirable.
16.3 RIGHTS OF ASSIGNEE Any assignee, transferee or sub-participant
of a Bank shall (unless limited by the express terms of the
assignment, transfer or sub-participation) take the full
benefit of every provision of the Security Documents
benefitting that Bank.
16.4 TRANSFER CERTIFICATES If any Bank wishes to transfer all or
any of its Commitment as contemplated in Clause 16.1 then such
transfer may be effected by the delivery to the Agent of a
duly completed and duly executed Transfer Certificate in which
event, on the later of the Transfer Date specified in such
Transfer Certificate and
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the fifth Business Day after the date
of delivery of such Transfer Certificate to the Agent:
16.4.1 to the extent that in such Transfer Certificate the
Bank which is a party thereto seeks to transfer its
Commitment, the Borrower and such Bank shall be
released from further obligations towards each other
under this Agreement and their respective rights
against each other shall be cancelled (such rights,
benefits and obligations being referred to in this
Clause 16.4 as "DISCHARGED RIGHTS AND OBLIGATIONS");
16.4.2 the Borrower and the Transferee which is a party
thereto shall assume obligations towards one another
and/or acquire rights against one another which
differ from such discharged rights and obligations
only insofar as the Borrower and such Transferee have
assumed and/or acquired the same in place of the
Borrower and such Bank; and
16.4.3 the Agent, the Arrangers, the Syndication Agent, the
Transferee and the other Banks shall acquire the same
rights and benefits and assume the same obligations
between themselves as they would have acquired and
assumed had such Transferee been an original party to
this Agreement as a Bank with the rights, benefits
and/or obligations acquired or assumed by it as a
result of such transfer.
16.5 POWER OF ATTORNEY In order to give effect to each Transfer
Certificate the Finance Parties and the Borrower each hereby
irrevocably and unconditionally appoint the Agent as its true
and lawful attorney with full power to execute on their
respective behalves each Transfer Certificate delivered to the
Agent pursuant to Clause 16.4 without the Agent being under
any obligation to take any further instructions from or give
any prior notice to, any of the Finance Parties or, subject to
the Borrower's rights under Clause 16.1, the Borrower before
doing so and the Agent shall so execute each such Transfer
Certificate on behalf of the other Finance Parties and the
Borrower immediately on its receipt of the same pursuant to
Clause 16.4.
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16.6 NOTIFICATION The Agent shall promptly notify the other Finance
Parties, the Transferee and the Borrower on the execution by
it of any Transfer Certificate together with details of the
amount transferred, the Transfer Date and the parties to such
transfer.
17 PAYMENTS, MANDATORY PREPAYMENT, RESERVE REQUIREMENTS AND ILLEGALITY
17.1 PAYMENTS All amounts payable by the Borrower and the Guarantor
under or pursuant to any of the Security Documents shall be
paid to such accounts at such banks as the Agent may from time
to time direct to the Borrower or the Guarantor (as the case
may be), and (unless payable in any other Currency of Account)
shall be paid in Dollars in same day funds (or such funds as
are required by the authorities in the United States of
America for settlement of international payments for immediate
value). Payments shall be deemed to have been received by the
Agent on the date on which the Agent receives authenticated
advice of receipt, unless that advice is received by the Agent
on a day other than a Business Day or at a time of day
(whether on a Business Day or not) when the Agent in its
discretion considers that it is impossible or impracticable
for the Agent to utilise the amount received for value that
same day, in which event the payment in question shall be
deemed to have been received by the Agent on the Business Day
next following the date of receipt of advice by the Agent.
17.2 NO DEDUCTIONS OR WITHHOLDINGS All payments (whether of
principal or interest or otherwise) to be made by the Borrower
and/or the Guarantor pursuant to the Security Documents shall,
subject only to Clause 17.3, be made free and clear of and
without deduction for or on account of any Taxes or other
deductions, withholdings, restrictions, conditions or
counterclaims of any nature, and neither the Borrower nor the
Guarantor will claim any equity in respect of any payment due
from it to the Banks or to the Agent under or in relation to
any of the Security Documents.
17.3 GROSSING-UP If at any time any law requires (or is interpreted
to require) the Borrower or the Guarantor to make any
deduction or withholding from any payment, or to change the
rate or manner in which any required deduction or
76
withholding is made, the Borrower or the Guarantor (as the
case may be) will promptly notify the Agent and,
simultaneously with making that payment, will pay to the Agent
whatever additional amount (after taking into account any
additional Taxes on, or deductions or withholdings from, or
restrictions or conditions on, that additional amount) is
necessary to ensure that, after making the deduction or
withholding, the Agent and the Banks receive a net sum equal
to the sum which they would have received had no deduction or
withholding been made.
17.4 EVIDENCE OF DEDUCTIONS If at any time either the Borrower or
the Guarantor is required by law to make any deduction or
withholding from any payment to be made by it pursuant to any
of the Security Documents, the Borrower or the Guarantor (as
the case may be) will pay the amount required to be deducted
or withheld to the relevant authority within the time allowed
under the applicable law and will, no later than thirty days
after making that payment, deliver to the Agent an original
receipt issued by the relevant authority, or other evidence
acceptable to the Agent, evidencing the payment to that
authority of all amounts required to be deducted or withheld.
If the Borrower makes any deduction or withholding from any
payment under or pursuant to any of the Security Documents,
and the Agent subsequently receives a refund or allowance from
any tax authority which the Agent identifies as being
referable to that deduction or withholding, the Agent shall,
as soon as reasonably practicable, pay to the Borrower an
amount equal to the amount of the refund or allowance
received, if and to the extent that it may do so without
prejudicing its right to retain that refund or allowance and
without putting itself in any worse financial position than
that in which it would have been had the deduction or
withholding not been required to have been made. Nothing in
this Clause shall be interpreted as imposing any obligation on
the Agent unless requested by the Borrower to apply for any
refund or allowance nor as restricting in any way the manner
in which the Agent organises its tax affairs, nor as imposing
on the Agent any obligation to disclose to the Borrower any
information regarding its tax affairs or tax computations. All
costs and expenses incurred by the Agent in obtaining or
seeking to obtain a refund or allowance from any tax authority
pursuant to this Clause shall for the Borrower's account.
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17.5 ADJUSTMENT OF DUE DATES If any payment to be made under any of
the Security Documents, other than a payment of interest on
the Facility, shall be due on a day which is not a Business
Day, that payment shall be made on the next succeeding
Business Day (unless the next succeeding Business Day falls in
the next calendar month in which event the payment shall be
made on the next preceding Business Day). Any such variation
of time shall be taken into account in computing any interest
in respect of that payment.
17.6 CHANGE IN LAW If, by reason of the introduction of any law, or
any change in any law, or the interpretation or administration
of any law, or in compliance with any request or requirement
from any central bank or any fiscal, monetary or other
authority:-
17.6.1 any Finance Party (or the holding company of any
Finance Party) shall be subject to any Tax with
respect to payments of all or any part of the
Indebtedness; or
17.6.2 the basis of Taxation of payments to any Finance
Party in respect of all or any part of the
Indebtedness shall be changed; or
17.6.3 any reserve requirements shall be imposed, modified
or deemed applicable against assets held by or
deposits in or for the account of or loans by any
branch of any Finance Party; or
17.6.4 any ratio (whether cash, capital adequacy, liquidity
or otherwise) which any Finance Party is required or
requested to maintain shall be affected; or
17.6.5 there is imposed on any Finance Party (or on the
holding company of any Finance Party) any other
condition in relation to the Indebtedness or the
Security Documents;
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and the result of any of the above shall be to increase the
cost to any Bank (or to the holding company of any Bank) of
that Bank making or maintaining its Commitment, or to cause
any Finance Party to suffer (in its opinion) a material
reduction in the rate of return on its overall capital below
the level which it reasonably anticipated at the date of this
Agreement and which it would have been able to achieve but for
its entering into this Agreement and/or performing its
obligations under this Agreement the Finance Party affected
shall notify the Agent and, on demand to the Borrower by the
Agent, the Borrower shall from time to time pay to the Agent
for the account of the Finance Party affected the amount which
shall compensate that Finance Party or the Agent (or the
relevant holding company) for such additional cost or reduced
return. A certificate signed by an authorised signatory of the
Agent or of the Finance Party affected setting out the amount
of that payment and the basis of its calculation shall be
submitted to the Borrower and shall be conclusive evidence of
such amount save for manifest error or on any question of law.
17.7 ILLEGALITY AND IMPRACTICALITY Notwithstanding anything
contained in the Security Documents, the obligations of a Bank
to advance or maintain the Facility shall terminate in the
event that a change in any law or in the interpretation of any
law by any authority charged with its administration shall
make it unlawful for that Bank to advance or maintain its
Commitment. In such event the Bank affected shall notify the
Agent and the Agent shall, by written notice to the Borrower,
declare the Banks' obligations to be immediately terminated.
If all or any part of the Facility shall have been advanced by
the Banks to the Borrower, the Indebtedness (including all
accrued interest) shall be prepaid within thirty days from the
date of such notice. Clause 6.3 shall apply to that prepayment
if it is made on a day other than the last day of an Interest
Period. During that period, the affected Bank shall negotiate
in good faith with the Borrower to find an alternative method
or lending base in order to maintain the Facility.
17.8 CHANGES IN MARKET CIRCUMSTANCES If at any time a Bank
determines (which determination shall be final and conclusive
and binding on the Borrower) that, by reason of changes
affecting the London Interbank market, adequate and fair
79
means do not exist for ascertaining the rate of interest on
the Facility or any part thereof pursuant to this Agreement:-
17.8.1 that Bank shall give notice to the Agent and the
Agent shall give notice to the Borrower of the
occurrence of such event; and
17.8.2 the Agent shall as soon as reasonably practicable
certify to the Borrower in writing the effective cost
to that Bank of maintaining its Commitment for such
further period as shall be selected by that Bank and
the rate of interest payable by the Borrower for that
period; or, if that is not acceptable to the
Borrower,
17.8.3 the Agent in accordance with instructions from that
Bank and subject to that Bank's approval of any
agreement between the Agent and the Borrower, will
negotiate with the Borrower in good faith with a view
to modifying this Agreement to provide a substitute
basis for that Bank's Commitment which is financially
a substantial equivalent to the basis provided for in
this Agreement.
If, within thirty days of the giving of the notice referred to
in Clause 17.8.1, the Borrower and the Agent fail to agree in
writing on a substitute basis for such Bank's Commitment the
Borrower will immediately prepay in the relevant Permitted
Currency or Currencies the amount of such Bank's Commitment
and the Maximum Facility Amount will automatically decrease by
the amount of such Commitment and such decrease shall not be
reversed. Clause 6.3 shall apply to that prepayment if it is
made on a day other than the last day of an Interest Period.
17.9 NON-AVAILABILITY OF CURRENCY Subject to the procedure set
forth in Clause 5.3, if a Bank is for any reason unable to
obtain Dollars or any other Permitted Currency in the London
Interbank market and is, as a result, or as a result of any
other contingency affecting the London Interbank market,
unable to advance or maintain its Commitment in Dollars or in
any other Permitted Currency, that Bank shall give notice to
the Agent and the Agent shall give notice to the
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Borrower and that Bank's obligations to make the Facility
available shall immediately cease. In that event, if all or
any part of the Facility shall have been advanced by that Bank
to the Borrower, the Agent in accordance with instructions
from that Bank and subject to that Bank's approval of any
agreement between the Agent and the Borrower, will negotiate
with the Borrower in good faith with a view to establishing a
mutually acceptable basis for funding the Facility or relevant
part thereof from an alternative source and/or in an
alternative Permitted Currency. If the Agent and the Borrower
have failed to agree in writing on a basis for funding the
Facility or relevant part thereof from an alternative source
and/or in an alternative Permitted Currency by 11.00 a.m. on
the second Business Day prior to the end of the then current
relevant Interest Period, the Borrower will (without prejudice
to its other obligations under or pursuant to this Agreement,
including, without limitation, its obligation to pay interest
on the Facility, arising on the expiry of the then relevant
Interest Period) prepay the Indebtedness to the Agent on
behalf of that Bank on the expiry of the then current relevant
Interest Period.
18 COMMUNICATIONS
18.1 METHOD Except for Communications pursuant to Clause 11, which
shall be made or given in accordance with Clause 11.20, any
Communication may be given, delivered, made or served (as the
case may be) under or in relation to this Agreement by letter
or fax and shall be in the English language and sent
addressed:-
18.1.1 in the case of any of the Finance Parties to the
Agent at its address at the head of this Agreement
(fax no: x(000) 000-0000) marked for the attention
of: Shipping Department; and
18.1.2 in the case of the Borrower and/or the Guarantor to
the Communications Address;
or to such other address or fax number as the Finance Parties,
the Borrower or the Guarantor may designate for themselves by
written notice to the others.
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18.2 TIMING A Communication shall be deemed to have been duly
given, delivered, made or served to or on, and received by a
party to this Agreement:-
18.2.1 in the case of a fax when the sender receives one or
more transmission reports showing the whole of the
Communication to have been transmitted to the correct
fax number;
18.2.2 if delivered to an officer of the relevant party or
(in the case of the Borrower and/or the Guarantor)
left at the Communications Address at the time of
delivery or leaving; or
18.2.3 if posted, at 9.00 a.m. on the third Business Day
after posting by prepaid first class post.
Any Communication by fax shall be promptly confirmed in
writing by post or hand delivery.
19 GENERAL INDEMNITIES
19.1 CURRENCY In the event of any Finance Party receiving or
recovering any amount payable under any of the Security
Documents in a currency other than the Currency of Account,
and if the amount received or recovered is insufficient when
converted into the Currency of Account at the date of receipt
to satisfy in full the amount due, the Borrower and/or the
Guarantor (as the case may be) shall, on the Agent's written
demand, pay to the Agent such further amount in the Currency
of Account as is sufficient to satisfy in full the amount due
and that further amount shall be due to the Agent on behalf of
the Finance Parties as a separate debt under this Agreement.
19.2 COSTS AND EXPENSES Each of the Borrower and the Guarantor
will, within fourteen days of the Agent's written demand,
reimburse the Agent (on behalf of each of the Finance Parties)
for all reasonable out of pocket expenses including internal
and external legal costs (including Value Added Tax or any
similar or replacement tax if applicable) of and incidental
to:-
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19.2.1 the negotiation, syndication, preparation, execution
and registration of the Security Documents (whether
or not any of the Security Documents are actually
executed or registered and whether or not all or any
part of the Facility is advanced);
19.2.2 any amendments, addenda or supplements to any of the
Security Documents (whether or not completed);
19.2.3 any other documents which may at any time be required
by any Finance Party to give effect to any of the
Security Documents or which any Finance Party is
entitled to call for or obtain pursuant to any of the
Security Documents (including, without limitation,
all premiums and other sums from time to time payable
by the Agent in relation to the Mortgagees'
Insurances); and
19.2.4 the exercise of the rights, powers, discretions and
remedies of the Finance Parties under or pursuant to
the Security Documents.
19.3 EVENTS OF DEFAULT Each of the Borrower and the Guarantor shall
indemnify the Finance Parties from time to time on demand
against all losses and costs incurred or sustained by any
Finance Party as a consequence of any Event of Default,
including (without limitation) any Break Costs.
19.4 FUNDING COSTS Each of the Borrower and the Guarantor shall
indemnify the Finance Parties from time to time on demand
against all losses and costs incurred or sustained by any
Finance Party if, for any reason due to a default or other
action by the Borrower, any Drawing is not advanced to the
Borrower after the relevant Drawdown Notice has been given to
the Agent, or is advanced on a date other than that requested
in the Drawdown Notice, including (without limitation) any
Break Costs.
19.5 PROTECTION AND ENFORCEMENT Each of the Borrower and the
Guarantor shall indemnify the Finance Parties from time to
time on demand against all losses,
83
costs and liabilities which any Finance Party may from time to
time sustain, incur or become liable for in or about the
protection, maintenance or enforcement of the rights conferred
on the Finance Parties by the Security Documents or in or
about the exercise or purported exercise by the Finance
Parties of any of the rights, powers, discretions or remedies
vested in them under or arising out of the Security Documents,
including (without limitation) any losses, costs and
liabilities which any Finance Party may from time to time
sustain, incur or become liable for by reason of any Finance
Party being mortgagees of any Vessel and/or a lender to the
Borrower, or by reason of any Finance Party being deemed by
any court or authority to be an operator or controller, or in
any way concerned in the operation or control, of any Vessel.
19.6 LIABILITIES OF FINANCE PARTIES Each of the Borrower and the
Guarantor will from time to time reimburse the Finance Parties
on demand for all sums which any Finance Party may pay on
account of any of the Security Parties or in connection with
any Vessel (whether alone or jointly or jointly and severally
with any other person) including (without limitation) all sums
which any Finance Party may pay or guarantees which any
Finance Party may give in respect of the Insurances, any
expenses incurred by any Finance Party in connection with the
maintenance or repair of any Vessel or in discharging any
lien, bond or other claim relating in any way to any Vessel,
and any sums which any Finance Party may pay or guarantees
which they may give to procure the release of any Vessel from
arrest or detention.
19.7 TAXES Each of the Borrower and the Guarantor shall pay all
Taxes to which all or any part of the Indebtedness or any of
the Security Documents may be at any time subject and shall
indemnify the Finance Parties on demand against all
liabilities, costs, claims and expenses resulting from any
omission to pay or delay in paying any such Taxes.
20 MISCELLANEOUS
20.1 WAIVERS No failure or delay on the part of the any Finance
Party in exercising any right, power, discretion or remedy
under or pursuant to any of the Security Documents, nor any
actual or alleged course of dealing between any Finance
84
Party and any of the Security Parties, shall operate as a
waiver of, or acquiescence in, any default on the part of any
Security Party, unless expressly agreed to do so in writing by
the Agent, nor shall any single or partial exercise by any
Finance Party of any right, power, discretion or remedy
preclude any other or further exercise of that right, power,
discretion or remedy, or the exercise by a Finance Party of
any other right, power, discretion or remedy.
20.2 NO ORAL VARIATIONS No variation or amendment of any of the
Security Documents shall be valid unless in writing and signed
on behalf of the Finance Parties and the relevant Security
Party.
20.3 SEVERABILITY If at any time any provision of any of the
Security Documents is invalid, illegal or unenforceable in any
respect that provision shall be severed from the remainder and
the validity, legality and enforceability of the remaining
provisions shall not be affected or impaired in any way.
20.4 SUCCESSORS ETC. The Security Documents shall be binding on the
Security Parties and on their successors and permitted
transferees and assignees, and shall inure to the benefit of
the Finance Parties and their respective successors,
transferees and assignees. Neither the Borrower nor the
Guarantor may assign or transfer any of its rights under or
pursuant to any of the Security Documents without the prior
written consent of the Agent.
20.5 FURTHER ASSURANCE If any provision of the Security Documents
shall be invalid or unenforceable in whole or in part by
reason of any present or future law or any decision of any
court, or if the documents at any time held by the Finance
Parties on their behalf are considered by the Banks for any
reason insufficient to carry out the terms of this Agreement,
then from time to time the Borrower and/or the Guarantor (as
the case may be) will promptly, on demand by the Agent,
execute or procure the execution of such further documents as
in the reasonable opinion of the Banks are necessary to
provide adequate security for the repayment of the
Indebtedness.
85
20.6 OTHER ARRANGEMENTS The Finance Parties may, without prejudice
to their rights under or pursuant to the Security Documents,
at any time and from time to time, on such terms and
conditions as they may in their discretion determine, and
without notice to either the Borrower or the Guarantor, grant
time or other indulgence to, or compound with, any other
person liable (actually or contingently) to the Finance
Parties or any of them in respect of all or any part of the
Indebtedness, and may release or renew negotiable instruments
and take and release securities and hold funds on realisation
or suspense account without affecting the liabilities of the
Borrower and/or the Guarantor (as the case may be) or the
rights of the Finance Parties under or pursuant to the
Security Documents.
20.7 ADVISERS The Borrowers and the Guarantor irrevocably authorise
the Agent, at any time and from time to time during the
Facility Period, to consult insurance advisers on any matters
relating to the Insurances, including, without limitation, the
collection of insurance claims, and from time to time to
consult or retain advisers or consultants to monitor or advise
on any other claims relating to the Vessels and/or ROVs. The
Borrower and the Guarantor will provide such advisers and
consultants with all information and documents which they may
from time to time reasonably require and will reimburse the
Agent on demand for all reasonable costs and expenses incurred
by the Agent in connection with the consultation or retention
of such advisers or consultants.
20.8 DELEGATION The Finance Parties may at any time and from time
to time delegate to any person any of their rights, powers,
discretions and remedies pursuant to the Security Documents,
other than rights relating to actions to be taken by an
Instructing Group or the Banks as a group on such terms as
they may consider appropriate (including the power to
sub-delegate).
20.9 RIGHTS ETC. CUMULATIVE Every right, power, discretion and
remedy conferred on the Finance Parties under or pursuant to
the Security Documents shall be cumulative and in addition to
every other right, power, discretion or remedy to which they
may at any time be entitled by law or in equity. The Finance
Parties may exercise each of their rights, powers, discretions
and remedies as often and
86
in such order as they deem appropriate subject to obtaining
the prior written consent of an Instructing Group. The
exercise or the beginning of the exercise of any right, power,
discretion or remedy shall not be interpreted as a waiver of
the right to exercise any other right, power, discretion or
remedy either simultaneously or subsequently.
20.10 NO ENQUIRY The Finance Parties shall not be concerned to
enquire into the powers of the Security Parties or of any
person purporting to act on behalf of any of the Security
Parties, even if any of the Security Parties or any such
person shall have acted in excess of their powers or if their
actions shall have been irregular, defective or informal,
whether or not any Finance Parties had notice thereof.
20.11 CONTINUING SECURITY The security constituted by the Security
Documents shall be continuing and shall not be satisfied by
any intermediate payment or satisfaction until the
Indebtedness shall have been repaid in full and none of the
Finance Parties shall be under any further actual or
contingent liability to any third party in relation to the
Vessels and/or the ROVs, the Insurances, Earnings or
Requisition Compensation or any other matter referred to in
the Security Documents.
20.12 SECURITY CUMULATIVE The security constituted by the Security
Documents shall be in addition to any other security now or in
the future held by the Finance Parties or any of them for or
in respect of all or any part of the Indebtedness, and shall
not merge with or prejudice or be prejudiced by any such
security or any other contractual or legal rights of any of
the Finance Parties, nor affected by any irregularity, defect
or informality, or by any release, exchange or variation of
any such security. Section 93 of the Law of Property Xxx 0000
and all provisions which the Agent considers analogous thereto
under the law of any other relevant jurisdiction shall not
apply to the security constituted by the Security Documents.
20.13 RE-INSTATEMENT If any Finance Party takes any steps to
exercise any of its rights, powers, remedies or discretions
pursuant to the Security Documents and
87
the result shall be adverse to the Finance Parties, the
Borrower, the Guarantor and the Finance Parties shall be
restored to their former positions as if no such steps had
been taken.
20.14 NO LIABILITY None of the Finance Parties, nor any agent or
employee of any Finance Party, nor any receiver and/or manager
appointed by the Agent, shall be liable for any losses which
may be incurred in or about the exercise of any of the rights,
powers, discretions or remedies of the Finance Parties under
or pursuant to the Security Documents nor liable as mortgagee
in possession for any loss on realisation or for any neglect
or default of any nature for which a mortgagee in possession
might otherwise be liable unless such Finance Party's action
constitutes gross negligence or wilful misconduct.
20.15 RESCISSION OF PAYMENTS ETC. Any discharge, release or
reassignment by any of the Finance Parties of any of the
security constituted by, or any of the obligations of any
Security Party contained in, any of the Security Documents
shall be (and be deemed always to have been) void if any act
(including, without limitation, any payment) as a result of
which such discharge, release or reassignment was given or
made is subsequently wholly or partially rescinded or avoided
by operation of any law, unless such Finance Party's action
constitutes gross negligence or wilful misconduct.
20.16 SUBSEQUENT ENCUMBRANCES If the Agent receives notice of any
subsequent Encumbrance affecting any Vessel, any ROV or all or
any part of the Insurances, Earnings or Requisition
Compensation or the Earnings Account, the Agent may open a new
account in its books for the Borrower. If the Agent does not
open a new account, then (unless the Agent gives written
notice to the contrary to the Borrower) as from the time of
receipt by the Agent of notice of such subsequent Encumbrance,
all payments made to the Agent shall be treated as having been
credited to a new account of the Borrower and not as having
been applied in reduction of the Indebtedness.
20.17 RELEASES If any Finance Party shall at any time in its
discretion release any party from all or any part of any of
the Security Documents or from any term,
88
covenant, clause, condition or obligation contained in any of
the Security Documents, the liability of any other party to
the Security Documents shall not be varied or diminished.
20.18 CERTIFICATES Any certificate or statement signed by an
authorised signatory of the Agent purporting to show the
amount of the Indebtedness (or any part of the Indebtedness)
or any other amount referred to in any of the Security
Documents shall, save for manifest error or on any question of
law, be conclusive evidence as against the Borrower or the
Guarantor (as the case may be) of that amount.
20.19 SURVIVAL OF REPRESENTATIONS AND WARRANTIES The representations
and warranties on the part of each of the Borrower and the
Guarantor contained in this Agreement shall survive the
execution of this Agreement and the advance of the facility or
any part thereof.
20.20 COUNTERPARTS This Agreement may be executed in any number of
counterparts each of which shall be original but which shall
together constitute the same
21 LAW AND JURISDICTION
21.1 GOVERNING LAW This Agreement shall in all respects be governed
by and interpreted in accordance with English law.
21.2 JURISDICTION For the exclusive benefit of the Finance Parties,
the parties to this Agreement irrevocably agree that the
courts of England are to have jurisdiction to settle any
disputes which may arise out of or in connection with this
Agreement and that any Proceedings may be brought in those
courts. Each of the Borrower and the Guarantor irrevocably
waives any objection which it may now or in the future have to
the laying of the venue of any Proceedings in any court
referred to in this Clause, and any claim that those
Proceedings have been brought in an inconvenient or
inappropriate forum.
21.3 ALTERNATIVE JURISDICTIONS Nothing contained in this Clause
shall limit the right of the Finance Parties to commence any
Proceedings against either the Borrower or the Guarantor in
any other court of competent jurisdiction nor shall the
89
commencement of any Proceedings against either the Borrower or
the Guarantor in one or more jurisdictions preclude the
commencement of any Proceedings in any other jurisdiction,
whether concurrently or not.
21.4 SERVICE OF PROCESS Without prejudice to the right of the
Finance Parties to use any other method of service permitted
by law, each of the Borrower and the Guarantor irrevocably
agrees that any writ, notice, judgment or other legal process
shall be sufficiently served on it if addressed to it and left
at or sent by post to the Address for Service, and in that
event shall be conclusively deemed to have been served at the
time of leaving or, if posted, at 9.00 a.m. on the third
Business Day after posting by prepaid first class registered
post.
IN WITNESS of which the parties to this Agreement have executed this Agreement
the day and year first before written.
90
SCHEDULE 1
THE BANKS, THE COMMITMENTS AND THE PROPORTIONATE SHARES
THE BANKS THE COMMITMENTS THE PROPORTIONATE SHARES
Den norske Bank ASA $20,000,000 13.3%
000 Xxxx Xxxxxx
Xxx Xxxx
Xxx Xxxx 00000-0000
Fax no: x(000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
Bank of America National Trust $20,000,000 13.3%
And Savings Association
0000 Xxxxxxx Xxxxxxxxx, 0xx xxxxx
Xxxxxxx, XX 00000
Fax no: x(000) 000-0000
Attention: Xxxxxxx Xxxxxxx
(and for Communication purposes
copy to:-
3 Xxxxx Center
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx
Xxxxx, 00000
XXX
Fax no: x(000) 000-0000
Attention: Xxxxxx Xxx)
Midland Bank Plc $20,000,000 13.3%
00-00 Xxxxxxx
Xxxxxx XX0X 0XX
Fax no: x(00) 000-000-0000
Attention: Xx Xxxx Xxxxxxxxxxx
ASLK - CGER Bank nv/sa $15,000,000 10%
Xxxxxxxxxxx 00-00
0000 Xxxxxxx
Xxxxxxx
Fax no: x(00) 0 000 0000
Attention: Xx Xxxx Xxxxxxx
91
The Chase Manhattan Bank $15,000,000 10%
000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxx
Fax No: x(00) 000-000-0000
Attention: Xxxxxxxxx X Xxxxxx
CIBC, Inc $15,000,000 10%
2 Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
XXX 00000
Fax: x(000) 000-0000
Attention: Xxxxxxx XxXxxxxx
(and for Communication purposes
copy to:- CIBC, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: x(000) 000 0000
Attention: Xxxx Xxxx)
Citibank N.A., London Branch $15,000,000 0%
000 Xxxxxx,
Xxxxxx XX0X 0XX
(and for Communication purposes
Citibank N.A.
0 Xxxxx Xxx
Xxxxx 000, Xxx Xxxxxx
Xxxxxxxx 00000, XXX
Fax: x(000) 000 0000/6139
Attention: Xxxxxxx Xxxxx)
The First National Bank $15,000,000 10%
of Chicago
One First National Plaza
Mail Suite IL I-0362
Xxxxxxx, XX 00000
Fax: x(000) 000 0000
Attention: Xxxxxxx X Xxxxx
ING (U.S.) Capital LLC $15,000,000 10%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: x(000) 000 0000
Attention: Xxxxxxx Xxxxxxx
92
SCHEDULE 2
LEAD ARRANGERS
1 Den norske Bank ASA
000 Xxxx Xxxxxx
Xxx Xxxx
Xxx Xxxx 00000-0000
Fax no: x(000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
2 NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxx Xxxxxx
00xx xxxxx
Xxxxxx
Xxxxx 00000
XXX
Fax no: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
3 Midland Bank Plc
00-00 Xxxxxxx
Xxxxxx XX0X 0XX
Fax no: x(00) 000-000-0000
Attention: Xx Xxxx Xxxxxxxxxxx
93
SCHEDULE 3
THE SHIPOWNING GUARANTORS AND THE VESSELS
NAME OF COUNTRY OF REGISTERED PRINCIPAL PLACE NAME OF FLAG OF
SHIPOWNING GUARANTOR INCORPORATION OFFICE OF BUSINESS VESSEL VESSEL
American Marine Delaware, USA 1313 North Market (a) 900 Town & Country
Construction, Inc. Street, Xxxxxxxxxx Xxxx, Xxxxx 000 No vessels
Delaware 19801 Houston, Texas
XXX 00000, XXX
(b) 0000 Xxxxx Xxxxx
Xxx Xxxxxx
Xxxxxxxxx
00000, XXX
Big Inch Marine Delaware, USA 0000 Xxxxxx Xxxxxx Xxxxxxxxxx Industrial
Systems Inc Xxxxxxxxxx Xxxx Xxxx, 00000 No vessels
Delaware 00000 XX 000, Xxxxxxx
XXX Texas 77041 -
2806, USA
S&H Diving LLC Louisiana, USA 000 Xx. Xxxx Xxxxxx (a) 900 Town & Country American Defender Panama
Xxxxxxxxx Xxxx, Suite 400
Lousiana 70501 Houston, Texas
XXX 00000, XXX
(b) 0000 Xxxxx Xxxxx
Xxx Xxxxxx
Xxxxxxxxx
00000, XXX
94
(c) 000 X.X. Xxxxx Xxxx
Xxxxxx Xxxxxxx
Xxxxxxxxx 00000
XXX
S&H Diving LLC American Victory USA
S&H Diving LLC American Pioneer Panama
S&H Diving LLC American Recovery USA
S&H Diving LLC American Star USA
S&H Diving LLC
S&H Diving LLC American Triumph USA
S&H Diving LLC American Independence USA
S&H Diving LLC American Pride USA
S&H Diving LLC American Constitution Panama
S&H Diving LLC American Eagle Honduras
S&H Diving LLC Seaway Legend USA
SCS Holdings Limited England/Wales Aldwych House Bucksburn House No vessels
00-00 Xxxxxxx Xxxxx Xxxx
Xxxxxx XX0X 0XX Xxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
SCS Holdings NV The Xxxxxxxxxxx, Xx Xxxxxxxxxx 00 No vessels
Antilles Curacao
The Netherlands,
Antilles
95
SCS Shipping Corporatio Liberia 00 Xxxxx Xxxxxx (in so far as it may 1 Work Class ROV
Monrovia have a principal place
Liberia of business in the USA
this would be
000 Xxxx & Xxxxxxx Xxxx
Xxxxx 000, Xxxxxxx
Xxxxx 00000 XXX)
SCS Shipping Limited Isle of Man 00/00 Xxxxx Xxxx Xxxxxxxxx House 3 Work Class ROVs
Xxxxxxx Xxxxx Road
Isle of Man Bucksburn
IM1 4LB Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxx Comex Seaway A/S Norway Stoltenberggt 1 Seaway Falcon Isle of Man
5527 Haugesund
Norway
Xxxxx Comex Seaway B.V. The Netherlands Xxxx Tasmanstraat No vessels
81, 3165
Albrandswaard AM
Rotterdam
The Netherlands
Xxxxx Comex Seaway Inc Louisiana, USA 000 Xx Xxxx Xxxxxx 000 Xxxx & Country 12 Work Class ROVs
Xxxxxxxxx 00000 Xxxx, Xxxxx 000 (xxx 0 Work Class
Louisiana, USA Houston, Texas ROV to be delivered)
77024, USA
(b) 0000 Xxxxx Xxxxx
Xxx Xxxxxx
00
Xxxxxxxxx
00000, XXX
(c) 000 X.X. Xxxxx Xxxx
Xxxxxx Xxxxxxx
Xxxxxxxxx 00000
XXX
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx
Xxxxxxxxx 00000
Xxxxx Comex Seaway Delaware, USA 000 Xxxx Xxxxx Xxxxxx 900 Town & Country No vessels
Holdings Inc Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XXX Xxxxxxx, Xxxxx
00000, XXX
Xxxxx Comex Seaway Scotland Bucksburn House 25 Work Class ROVs
Limited Xxxxx Xxxx
Xxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxx Comex Seaway Delaware, USA 1313 North Market (a) 000 Xxxx & Xxxxxxx Xxxxxxxx Xxxxxxx
Xxxx Xxxxx Inc. Street, Wilmington Lane, Suite 400
Delaware 19801 Houston, Texas
XXX 00000, XXX
(b) 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxx
Xxxxxxxxxx 00000
XXX
97
Xxxxxxxxxxx A/S Norway Stoltenberggt 1 No vessels
5527 Haugesund
Norway
98
SCHEDULE 4
XXXXX COMEX SEAWAY S.A. AND SUBSIDIARIES
Certificate of Compliance
as of and for the period ended [ ]
figures in USD thousands
12.2.2. ADDITIONAL SECURITY
Valuation (of the Vessels)
Original Dollar Amount
--------------------------------------------------------
COLLATERAL COVERAGE RATIO
Covenant 120%
--------------------------------------------------------
12.3.1. (a) CONSOLIDATED TANGIBLE NET WORTH
Capital stock
Paid-in surplus
Retained earnings
Less: Treasury stock
Less: Intangible assets
-------------
Consolidated Tangible Net Worth -
At closing 250,000
50% of consolidated net income FY1999 (if>0)
50% of consolidated net income FY2000 (if>0)
50% of consolidated net income FY2001 (if>0)
50% of consolidated net income FY2002 (if>0)
50% of consolidated net income FY2003 (if>0)
Minimum Consolidated Tangible Net Worth 250,000
-------------------------------------------------------------------------------
CONSOLIDATED TANGIBLE NET WORTH -
Minimum Consolidated Tangible Net Worth 250,000
-------------------------------------------------------------------------------
12.3.1. (b) CONSOLIDATED DEBT TO CONSOLIDATED TANGIBLE NET WORTH
Notes payable
Current maturity of long-term debt & capital leases
Long-term debt
Long-term capital lease obligations
Guarantees of non-consolidated entity debt and capital lease
Subordinated debt
Less: restricted cash
-------------
-------------------------------------------------------------------------------
CONSOLIDATED DEBT -
CONSOLIDATED TANGIBLE NET WORTH -
CONSOLIDATED DEBT TO CONSOLIDATED TANGIBLE NET WORTH
-------------------------------------------------------------------------------
At the end of each fiscal quarter ending the last day of
August Maximum 1.25:1
November Maximum 1.00:1
February Maximum 1.00:1
May Maximum 1.00:1
12.3.1. (c) CONSOLIDATED DEBT/EBITDA (ROLLING FOUR FISCAL QUARTER BASIS, ADJUSTED FOR ACQUISITIONS)
Consolidated Debt
EBITDA
-------------------------------------------------------------------------------
Net Income -
Interest -
Tax -
Depreciation & amortization -
-------------------------------------------------------------------------------
EBITDA - - - - -
-------------------------------------------------------------------------------
CONSOLIDATED DEBT: EBITDA
Maximum Consolidated Debt: EBITDA, first three years of Facility Period: 3.50
Maximum Consolidated Debt: EBITDA, starting on the third anniversary of Execution Date: 3.25
Maximum Consolidated Debt: EBITDA, starting on the fourth anniversary of Execution Date: 3.00
-------------------------------------------------------------------------------
12.3.1. (d) INTER-COMPANY INDEBTEDNESS
99
---------------------------------------------------------------
Inter-Company Indebtedness
Maximum Inter-Company indebtedness 30,000
---------------------------------------------------------------
1.1.58. MARGIN
(a) for the first three (3) years of the Facility Period: (b) for the fourth year of the Facility Period until the end
of the Facility Period:
CONSOLIDATED DEBT: EBITDA MARGIN CONSOLIDATED DEBT: EBITDA MARGIN
------------------------- ------ ------------------------- ------
3 or greater 1.25% 3 or greater 1.40%
2 or greater, but less than 3 1.10% 2 or greater, but less than 3 1.25%
1 or greater, but less than 2 0.95% 1 or greater, but less than 2 1.10%
Less than 1 0.85% Less than 1 1.00%
----------------------------------------------------------------
Current consolidated Debt/EBITDA ratio is:
Accordingly, the Margin for the period to is:
----------------------------------------------------------------
I hereby certify that, as of the latest Margin Review Date, to the best of my
knowledge, no Event of Default (as defined in the Multi-Currency Revolving Loan
Facility Agreement referred to below) has occurred and all Representations and
Warranties of the Borrower and Guarantor set forth in the Multi-Currency
Revolving Loan Facility Agreement between Adviesburo Energietechniek van de Pol
B.V. (also referred to as and trading under the name of Xxxxx Comex Seaway
Finance), Xxxxx Comex Seaway S.A., Den norske Bank ASA and others signed, [ ]
March 1999 are true and correct.
XXXXX COMEX SEAWAY M.S. LIMITED as agent for XXXXX COMEX SEAWAY S.A.
By:
-------------------------------------
Title: Director/Chief Financial Officer
Date:
-------------------------------------
100
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: Den norske Bank ASA as agent (the "Agent")
TRANSFER CERTIFICATE
This transfer certificate relates to a loan facility agreement (as the same
may be from time to time amended, varied, novated or supplemented, the
"FACILITY AGREEMENT") dated 1999 whereby a revolving credit
facility of up to $150,000,000 was made available to Adviesburo
Energietechniek Van de Pol B.V. (also referred to as and trading under the
name Xxxxx Comex Seaway Finance) as borrower by a group of banks on whose
behalf the Agent acts as agent and security trustee.
1 Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms "Bank" and
"Transferee" are defined in the schedule to this transfer certificate .
2 The Bank (i) confirms that the details in the Schedule hereto under the
heading "BANK'S COMMITMENT" accurately summarises its Commitment in the
Facility Agreement and (ii) requests the Transferee to accept and
procure the transfer to the Transferee of the portion of such
Commitment specified in the Schedule hereto by counter-signing and
delivering the Transfer Certificate to the Agent at its address for the
service of Communications specified in the Facility Agreement.
3 The Transferee requests the Agent to accept this Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of
clause 16.4 of the Facility Agreement so as to take effect in
accordance with the terms thereof on the Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
4 The Transferee confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not in the future rely on the Bank or any other party to the Facility
Agreement to check or enquire on its behalf into the legality,
validity, effectiveness, adequacy, accuracy or completeness of any such
information and further agrees that it has not relied and will not rely
on the Bank or any other party to the Facility Agreement to access or
keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Borrower
or any other party to the Facility Agreement.
5 Execution of this Transfer Certificate by the Transferee constitutes
its representation to the Transferor and all other parties to the
Facility Agreement that it has power to become a party to the Facility
Agreement as a Bank on the terms herein and therein set out and has
taken all steps to authorise execution and delivery of this Transfer
Certificate.
101
6 The Transferee undertakes with the Bank and each of the other parties
to the Facility Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Facility
Agreement will be assumed by it after delivery of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which the Transfer Certificate is expressed to take effect.
7 The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facility Agreement or any document
relating thereto and assumes no responsibility for the financial
condition of the Borrower or for the performance and observance by the
Borrower of any of its obligations under the Facility Agreement or any
document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
8 The Bank gives notice that nothing in this transfer certificate or in
the Facility Agreement (or any document relating thereto) shall oblige
the Bank to (i) accept a re-transfer from the Transferee of the whole
or any part of its rights, benefits and/or obligations under the
Facility Agreement transferred pursuant hereto or (ii) support any
losses directly or indirectly sustained or incurred by the Transferee
for any reason whatsoever including, without limitation, the
non-performance by the Borrower or any other party to the Facility
Agreement (or any document relating thereto) of its obligations under
any such document. The Transferee acknowledges the absence of any such
obligation as is referred to in (i) or (ii) above.
9 This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and interpreted in accordance with
English law.
THE SCHEDULE
1 Bank:
2 Transferee:
3 Transfer Date:
4 Commitment(1): Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
Den norske Bank ASA
---------------------------------
(1) Details of the Bank's Commitment should not be completed after the
Termination Date.
102
As agent for and on behalf of itself
The Borrower and the other Finance Parties in the presence of:-
By:
--------------------------------
Date: [ ]
103
SIGNED by )
duly authorised for and on behalf )
of ADVIESBURO ENERGIETECHNIEK )
VAN DE POL B.V. )
(also referred to as and trading under )
the name Xxxxx Comex Seaway Finance) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of XXXXX COMEX SEAWAY S.A. )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of DEN NORSKE BANK ASA )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of BANK OF AMERICA NATIONAL )
TRUST AND SAVINGS )
ASSOCIATION (as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of MIDLAND BANK PLC )
(as a Bank) )
in the presence of:- )
104
SIGNED by )
duly authorised for and on behalf )
of ASKL-CGER BANK NV/SA )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of THE CHASE MANHATTAN BANK )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of CIBC, INC. )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of CITIBANK N.A. )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of ING (U.S.) CAPITAL LLC )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of FIRST NATIONAL BANK )
OF CHICAGO )
(as a Bank) )
in the presence of:- )
105
SIGNED by )
duly authorised for and on behalf )
of DEN NORSKE BANK ASA )
(as the Agent and Security Trustee) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of DEN NORSKE BANK ASA )
(as an Arranger) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of NATIONSBANC XXXXXXXXXX )
SECURITIES LLC )
(as an Arranger) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of MIDLAND BANK PLC )
(as an Arranger) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of BANK OF AMERICA )
NATIONAL TRUST AND )
SAVINGS ASSOCIATION )
(as Syndication Agent) )
in the presence of:- )
106
For the purposes of Article 1 of the Protocol annexed to the Convention on
jurisdictions and enforcement of judgements on civil and commercial matters
signed at Brussels on 27 September 1968, the following party expressly and
specifically agrees to the provisions of Clause 21.2 of the Agreement:-
SIGNED by
-----------------------------
duly authorised for and on behalf of
XXXXX COMEX SEAWAY SA
107
APPENDIX A
To: DEN NORSKE BANK ASA
From: ADVIESBURO ENERGIETECHNIEK VAN DE POL B.V.
(also referred to as and trading under the name Xxxxx Comex Seaway
Finance)
[Date]
Dear Sirs,
DRAWDOWN NOTICE
We refer to the Loan Facility Agreement dated 1999 made between, amongst
others, ourselves and yourselves ("THE AGREEMENT").
Words and phrases defined in the Agreement have the same meaning when
used in this Drawdown Notice.
Pursuant to Clause 2.3 of the Agreement, we irrevocably request that you
advance a Drawing of [ ] to us on 199 , which is a Business Day, by paying the
amount of the Drawing to [ ].
We warrant that the representations and warranties contained in
Clause 4 of the Agreement are true and correct at the date of this Drawdown
Notice and will be true and correct on 199 ; that no Event of
Default nor Potential Event of Default has occurred and is continuing, and
that no Event of Default or Potential Event of Default will result from the
advance of the Drawing requested in this Drawdown Notice.
We select the period of [ ] months as the [first] Interest Period in
respect of the Drawing.
We select [ ] as the Permitted Currency in which the Drawing is to be
denominated.
Yours faithfully
--------------------
For and on behalf of
ADVIESBURO ENERGIETECHNIEK VAN DE POL B.V.
(also referred to as and trading under the name Xxxxx Comex Seaway Finance)
000
XXXXXXXX X
FORM OF ASSIGNMENT OF INTER-COMPANY INDEBTEDNESS
000
XXXXXXXX X
XXXX XX XXXXXXXXX TO BE PRODUCED PURSUANT TO CLAUSE 12.2.3(H) OF THE AGREEMENT
SCS BACKLOG OVER 2 MUSD INCLUDING TOTAL TURNOVER FOR CURRENT YEAR
PROJECT (VALUE IN MILLIONS) 1999 2000 2001 2002 2003 2004 TOTAL
CLIENT TOTAL VALUE $ $ $ $ $ $ $
Project Details
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CLIENT TOTAL VALUE $ $ $ $ $ $ $
Project Details
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CLIENT TOTAL VALUE $ $ $ $ $ $ $
Project Details
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CLIENT TOTAL VALUE $ $ $ $ $ $ $
Project Details
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CLIENT TOTAL VALUE $ $ $ $ $ $ $
Project Details
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000
XXXXXXXX X
LIST OF ENCUMBRANCES NOTIFIED TO THE AGENT PURSUANT TO CLAUSE 12.1.1 OF
THE AGREEMENT
NONE
000
XXXXXXXX X
ADDITIONAL RATE FORMULA
(a) The Additional Rate for a Drawing for each of its Interest Period(s) is
the rate determined by the Agent to be equal to the arithmetic mean
(rounded upward, if necessary, to four decimal places) of the
respective rates notified by each of the Reference Banks to the Agent
and calculated in accordance with the following formulae:
in relation to a Drawing denominated in Pounds Sterling:
BY + S(Y-Z) + F X 0.01 % per annum = Additional Rate
----------------------
100- (B+S)
in relation to any other Drawing:
F X 0.01 % per annum = Additional Rate
---------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities
(in excess of any stated minimum) which the Bank of England
requires the Reference Bank to hold on a non-interest-bearing
deposit account in accordance with its cash ratio
requirements;
Y is the rate at which Pounds Sterling deposits are offered by
the Reference Bank to leading banks in the London interbank
market at or about 11.00 am on that day for relevant period;
S is the percentage of the Reference Bank's eligible liabilities
which the Bank of England requires the Reference Bank to place
as a special deposit;
Z is the interest rate per annum allowed by the Bank of England
on special deposits; and
F is the charge payable by the Reference Bank to the Financial
Services Authority under paragraph 2.02 or 2.03 (as
appropriate, or such succeeding provisions) of the Fees
Regulations but where for this purpose, the figure for the
minimum amount in paragraph 2.02b (or such succeeding
provisions) will be deemed to be zero expressed in pounds per
(pound)1 million of the fee base of the Reference Bank.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations
(iii) "FEES REGULATIONS" means
112
(1) prior to 31 March 1999, the Banking Supervision
(Fees) Regulations 1998; and
(2) on and after 31 March 1999, any regulations
governing the payment of fees for banking
supervision.
(iv) "RELEVANT PERIOD" in relation to each Interest Period, means
(A) if it is three months or less, that Interest Period;
or
(B) if it is more than three months, three months.
(c) In the application of the formula B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = .05% and Y =
15%, BY is calculated as 0.5. x 15.
(d) If a Reference Bank does not supply a rate to the Agent, the applicable
Additional Rate will be determined on the basis of the rate(s) supplied
by the remaining Reference Banks.
(e)
(i) The formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) If a change in circumstances has rendered, or will render, the formula
inappropriate, the Agent (after consultation with the Banks and the
Borrower) shall notify the Borrower of the manner in which the
Additional Rate will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of manifest
error, be binding on all the parties to this Agreement.
113
