Contract
Exhibit 4.5
Date:
as of February 12, 2008
as
Borrower
KIFISSIA
STAR OWNERS INC.
OCEANCLARITY
OWNERS LIMITED, OCEANENERGY OWNERS LIMITED,
OCEANFIGHTER
OWNERS INC., OCEANPRIME OWNERS LIMITED,
OCEANRESOURCES
OWNERS LIMITED, OCEANSHIP OWNERS LIMITED, OCEANSTRENGTH OWNERS LIMITED,
OCEANTRADE OWNERS LIMITED, OCEANVENTURE OWNERS LIMITED AND
OCEANWEALTH
OWNERS LIMITED
as
Joint and Several Guarantors
THE
BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN
as
Lenders
NORDEA
BANK NORGE ASA,
acting through its Grand Cayman
branch,
as
Lead Arranger and Bookrunner,
NORDEA
BANK FINLAND PLC,
acting through its New York
branch,
as
Administrative Agent and Security Trustee
BANK
OF SCOTLAND PLC, PIRAEUS BANK A.E.
AND
SKANDINAVISKA ENSKILDA XXXXXX XX,
as
Co-Arrangers
-and-
NORDEA
BANK FINLAND PLC,
acting through its New York
branch,
as
Swap Bank
_______________________________________________________
AMENDED
AND RESTATED LOAN AGREEMENT
______________________________________________________
Relating
to a $325,000,000 Senior Secured Credit Facility consisting of
a
$200,000,000 Secured Reducing Revolving Credit Facility and a
$125,000,000
Secured Term Loan Facility
INDEX
|
Clause
|
Page
|
|
|
1
|
INTERPRETATION
|
3
|
|
2
|
FACILITY
|
24
|
|
3
|
DRAWDOWN
|
25
|
|
4
|
INTEREST
|
27
|
|
5
|
INTEREST
PERIODS
|
29
|
|
6
|
DEFAULT
INTEREST
|
30
|
|
7
|
REDUCTION,
REPAYMENT, PREPAYMENT AND CANCELLATION
|
30
|
|
8
|
CONDITIONS
PRECEDENT TO THE ADVANCES
|
35
|
|
9
|
REPRESENTATIONS
AND WARRANTIES
|
38
|
|
10
|
COVENANTS
|
44
|
|
11
|
GUARANTEE
|
53
|
|
12
|
PAYMENTS
AND CALCULATIONS
|
55
|
|
13
|
APPLICATION
OF RECEIPTS
|
57
|
|
14
|
EVENTS
OF DEFAULT
|
58
|
|
15
|
FEES
AND EXPENSES
|
61
|
|
16
|
INDEMNITIES
|
62
|
|
17
|
NO
SET-OFF OR TAX DEDUCTION
|
66
|
|
18
|
ILLEGALITY,
ETC
|
66
|
|
19
|
ASSIGNMENTS
AND PARTICIPATIONS; CHANGES IN LENDING OFFICE
|
67
|
|
20
|
VARIATIONS
AND WAIVERS
|
70
|
|
21
|
NOTICES
|
71
|
|
22
|
POSITION
OF THE LENDERS AND THE SWAP BANK
|
73
|
|
23
|
SUPPLEMENTAL;
SUBORDINATION OF OBLIGORS
|
73
|
|
24
|
UPSIZE
OPTION
|
74
|
|
25
|
EFFECTIVENESS
OF THIS AGREEMENT
|
75
|
|
26
|
THE
AGENT AND THE SECURITY TRUSTEE
|
77
|
|
27
|
LAW
AND JURISDICTION
|
81
|
|
28
|
WAIVER
OF JURY TRIAL
|
82
|
|
29
|
PATRIOT
ACT
|
82
|
|
|
SCHEDULES
AND APPENDICES
|
Schedule
1
|
Lenders
and Commitments
|
|
Schedule
2
|
Drawdown
Notice
|
|
Schedule
3
|
Condition
Precedent Documents
|
|
Schedule
4
|
Form
of Assignment and Acceptance
|
|
Appendix
A
|
Form
of Accession Agreement
|
|
Appendix
B
|
Form
of Compliance Certificate
|
|
Appendix
C
|
Form
of Charter Assignment
|
|
Appendix
D
|
Form
of Earnings Account Pledge
|
|
Appendix
E
|
Form
of Earnings Assignment
|
|
Appendix
F
|
Form
of Insurance Assignment
|
|
Appendix
G
|
Forms
of Manager’s Undertaking
|
|
Appendix
H
|
Forms
of Mortgage and Deed of Covenants
|
|
Appendix
I
|
Forms
of Note
|
|
Appendix
J
|
Form
of Share Pledge
|
THIS
AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is made as of
February 12, 2008
AMONG
|
(1)
|
OCEANFREIGHT INC., a
corporation duly existing and incorporated under the laws of the Republic
of The Xxxxxxxx Islands, as borrower (the “Borrower”);
|
|
(2)
|
KIFISSIA
STAR OWNERS INC. (“Kifissia”), OCEANCLARITY
OWNERS LIMITED (“Oceanclarity”),
OCEANENERGY OWNERS LIMITED (“Oceanenergy”),
OCEANFIGHTER OWNERS INC. (“Oceanfighter”),
OCEANPRIME OWNERS LIMITED (“Oceanprime”),
OCEANRESOURCES OWNERS LIMITED (“Oceanresources”),
OCEANSHIP OWNERS LIMITED (“Oceanship”),
OCEANSTRENGTH OWNERS LIMITED (“Oceanstrength”),
OCEANTRADE OWNERS LIMITED (“Oceantrade”),
OCEANVENTURE OWNERS LIMITED (“Oceanventure”) and
OCEANWEALTH OWNERS LIMITED (“Oceanwealth”), each a
corporation duly existing and incorporated under the laws of the Republic
of The Xxxxxxxx Islands, as joint and several guarantors (together with
any Additional Ship Owner and any Replacement Ship Owner (each as defined
below) which becomes a party hereto pursuant to an Accession Agreement (as
defined below), the “Guarantors”, and each
separately a “Guarantor”);
|
|
(3)
|
THE
BANKS AND FINANCIAL INSTITUTIONS NAMED ON SCHEDULE 1 HERETO, as lenders
(collectively, the “Existing
Lenders”);
|
|
(4)
|
NORDEA
BANK NORGE ASA,
acting through its
Grand Cayman branch, as lead arranger (in such capacity, the “Lead Arranger”) and
bookrunner (in such capacity, the “Bookrunner”);
|
|
(5)
|
BANK
OF SCOTLAND PLC, PIRAEUS BANK A.E. and SKANDINAVISKA ENSKILDA XXXXXX XX,
as co-arrangers (collectively, in such capacity, the “Co-Arrangers”);
|
|
(6)
|
NORDEA
BANK FINLAND PLC, acting
through its New York branch, as administrative agent for the
Lenders (in such capacity, the “Agent”) and security
trustee (in such capacity, the “Security Trustee”);
and
|
|
(7)
|
NORDEA
BANK FINLAND PLC, acting
through its New York branch, as swap bank (in such capacity, the
“Swap
Bank”).
|
WITNESSETH THAT:
WHEREAS, by a loan agreement
dated as of September 18, 2007 (the “Original Loan Agreement”)
among the Borrower, the Guarantors, and the other parties thereto, a senior
secured credit facility of up to $325,000,000 was made available to the Borrower
consisting of:
|
(a)
|
a
revolving credit facility in a principal amount of up to $200,000,000 (the
“Tranche A Loan”)
for the purposes of (i) refinancing the existing indebtedness of the
Borrower and the relevant Guarantors in respect of the Original Fleet,
(ii) financing up to 100% of the purchase price payable in respect of the
PINK SANDS and the RICHMOND, (iii) paying fees and expenses in relation to
this facility and (iv) providing the Group with funds for general
corporate and working capital purposes;
and
|
|
(b)
|
a
term loan facility in a principal amount of up to $125,000,000 (the “Tranche B Loan”) for the
purpose of financing up to 100% of the purchase price (including any
deposit) payable in respect of the AUGUSTA, OLINDA and any other
Additional Ships (provided that the
Commitments in respect of the Tranche B Loan shall be reduced on October
1, 2010 by an amount equal to the undrawn amount (if any) of the Tranche B
Loan on such date);
|
WHEREAS, as of the date
hereof, under the terms and conditions of the Original Loan Agreement, Advances
in the principal amount of $199,000,000 in respect of the Tranche A Loan and
$125,000,000 in respect of the Tranche B Loan have been made available to the
Borrower, all of which remains outstanding;
WHEREAS, subject to the terms and
conditions set forth in Clause 24, from time to time during the period
between the date of the Original Loan Agreement and the third anniversary
thereof the Borrower may by notice to the Agent, without the consent of the
Lenders, increase the available Commitments in respect of the Tranche B Loan by
either (a) causing one or more banks or financial institutions to become a
Lender hereunder (with all the rights and obligations of a Lender attendant
thereto) in respect of the Tranche B Loan or (b) agreeing with one or more
Lenders, in each such Lender’s sole discretion, to increase such Lender’s
Commitment in respect of the Tranche B Loan;
WHEREAS, pursuant to the
Master Agreement, the Swap Bank agreed to enter into certain Transactions
pursuant to separate Confirmations from time to time to hedge the exposure of
the Borrower to interest rate fluctuations under the Original Loan
Agreement;
WHEREAS, at the request of the Borrower, Nordea
Bank Norge ASA has agreed to serve as the Lead Arranger and Bookrunner, and
Nordea Bank Finland PLC, New York Branch, has agreed to serve as Agent and
Security Trustee under this Agreement;
WHEREAS, the Obligors and the
Credit Parties have agreed to amend the Original Loan Agreement to:
|
(a)
|
increase
the Margin from 1.05 percent per annum to 1.30 percent per
annum;
|
|
(b)
|
increase
the Collateral Maintenance Ratio from 125% of the Loan plus any unutilized
Commitment in respect of the Tranche A Loan to 140% of the Loan plus any
unutilized Commitment in respect of the Tranche A Loan;
|
|
(c)
|
increase
the commitment fee from 0.35% per annum on the daily average unutilized
Commitment of each Lender to 0.45% per annum on the daily average unutilized
Commitment of each Lender;
|
|
(d)
|
provide that the Commitments in
respect of the Tranche A Loan shall be reduced by 16 semi-annual
reductions, commencing on April 1, 2008 and thereafter on each October 1
and April 1 which follows, with the first two (2) reductions to be in the
amount of $8,500,000 each, the following 13 reductions to be in the amount
of $11,000,000 each, and the 16th reduction to be in the amount of
$40,000,000;
|
|
(e)
|
provide
that repayment installments in respect of Advances of the Tranche B Loan
shall be repaid in 15 semi-annual installments, commencing on January 1,
2009 and thereafter on each July 1 and January 1 which follows, with the
first 14 repayment installments to be in the principal
amount of $6,944,444 and the 15th repayment installment to be in the principal
amount of $27,777,778; and
|
|
(f)
|
provide
that the weighted average
age of the Ships (weighted by the Fair Market Value of the Ships) shall
not exceed 18 years. If any Ship reaches the age of 21
years or more during this period, such Ship shall be assigned no value in
the calculation of the aggregate Fair Market Value of the Ships;
and
|
WHEREAS, the parties hereto intend
that:
|
(a)
|
the provisions of the Original
Loan Agreement, to the extent amended and restated hereby, shall be
superseded and replaced by the provisions of this Agreement, provided
that this Agreement
and any amendments, modifications or supplements to be issued pursuant to
this Agreement to the documents executed as security (the “Original
Security Documents”)
for the obligations of the Obligors under the Original Loan Agreement, the
Notes and the Master Agreement will not extinguish the obligations of the
Obligors arising under the Original Loan Agreement and the Original
Security Documents and do not constitute a novation of the Original Loan
Agreement or the any of the Original Security Documents;
and
|
|
(b)
|
all Security Interests evidenced
by the Original Security Documents, to the extent amended and restated in
connection with this Agreement, are hereby ratified, confirmed and
continued.
|
NOW, THEREFORE, in
consideration of the premises set forth above, the covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
|
1
|
INTERPRETATION
|
|
1.1
|
Definitions. Subject
to Clause 1.5, in this Agreement:
|
|
“Acceptable Accounting
Firm” means Ernst & Young, or such other recognized
international accounting firm as the Agent may, with the consent of the
Majority Lenders, approve from time to time in writing, such approval not
to be unreasonably withheld;
|
|
|
“Accession Agreement”
means, in relation to an Additional Ship Owner, an Accession Agreement in
the form set out in Appendix A hereto;
|
|
|
“Actual Drawdown Date”
means, in respect of an Advance, the date on which that Advance is
actually made;
|
|
|
“Additional Ship” means a
ship which is, or is to be, purchased by an Additional Ship Owner which
(unless all of the Lenders acting in their reasonable discretion agree
otherwise) must satisfy all of the Additional Ship
Requirements;
|
|
|
“Additional Ship
Requirements” means a ship which is proposed to be purchased by an
Additional Ship Owner that satisfies the following
requirements:
|
|
(a)
|
it
is either a crude oil tanker, a product tanker, a chemical tanker, a bulk
carrier or a container ship and, in the case of any tanker vessel, of
double hull design;
|
|
|
(b)
|
on
the Actual Drawdown Date of an Advance of the Tranche B Loan relating to
such Additional Ship, such Additional Ship is no more than 12 years
old;
|
|
|
(c)
|
it
is purchased on normal, arm’s-length commercial terms;
|
|
|
(d)
|
it
maintains the highest class for vessels of the same age and type with a
Classification Society, free of any overdue recommendations and conditions
affecting class; and
|
|
|
(e)
|
it
is to be registered under the law of an Approved Flag
State.
|
|
|
“Additional Ship MOA”
means, in relation to an Additional Ship, a memorandum of agreement to be
made between the Additional Ship Seller and the Additional Ship Owner on
terms and conditions acceptable to the Agent (such approval not to be
unreasonably withheld if the Additional Ship satisfies all the Additional
Ship Requirements);
|
||
|
“Additional Ship Seller”
means the seller of an Additional Ship;
|
||
|
“Additional Ship Owner”
means a company which is a direct or indirect wholly-owned subsidiary of
the Borrower incorporated in a jurisdiction acceptable to the Majority
Lenders (in their reasonable discretion) which shall be the owner of an
Additional Ship and which will become a Guarantor hereunder pursuant to an
Accession Agreement, it being understood that any Additional Ship Owner
may be incorporated in an Approved Flag State without the consent of the
Lenders;
|
||
|
“Advance” means the
principal amount of each borrowing by the Borrower under this
Agreement;
|
||
|
“Affected Lender” has the
meaning assigned such term in Clause 4.5;
|
||
|
“Affiliate” means, as to
any person, any other person that, directly or indirectly, controls, is
controlled by or is under common control with such person or is a director
or officer of such person, and for purposes of this definition, the term
“control”
(including the terms “controlling”, “controlled by” and
“under common control
with”) of a person means the possession, direct or indirect, of the
power to vote 50% or more of the voting stock of such person or to direct
or cause direction of the management and policies of such person, whether
through the ownership of voting stock, by contract or
otherwise;
|
||
|
“Approved Broker” means
each of X. Xxxxxxxx & Company Limited, X.X. Xxxxxx Shipbrokers A.S.,
Fearnley AS, Xxxxxxxxx &
Stemoco A/S, Xxxxxxx Xxxxxx & Young and such other
internationally recognized ship brokers as the Agent may, with the consent
of the Majority Lenders, approve from time to time in writing, such
approval not to be unreasonably withheld;
|
||
|
“Approved Flag” means the
Bahamas, Cypriot, Maltese, Xxxxxxxx Islands, Liberian, Panamanian or
Singapore flag or such other flag as the Agent may, with the consent of
the Majority Lenders, approve from time to time in writing as the flag on
which a Ship shall be registered, such approval not to be unreasonably
withheld;
|
||
|
“Approved Flag State”
means The Bahamas, Cyprus, Malta, Xxxxxxxx Islands, Liberia, Panama and
Singapore or any other country in which the Agent may, with the consent of
the Majority Lenders, approve from time to time in writing that a Ship be
registered, such approval not to be unreasonably
withheld;
|
||
|
“Approved Manager” means,
in relation to each Ship, either:
|
||
|
(a)
|
Cardiff
Marine Inc., a corporation incorporated in the Republic of Liberia and
maintaining a ship management office at Omega Building, 00 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, 000 00, Xxxxxx; or
|
|
|
(b)
|
Wallem
Shipmanagement, a company incorporated in Hong Kong and maintaining a ship
management office at 00/X Xxxxxxx Xxxxx Xxxx, Xxxxxx Xxxxx, 979 King’s
Road, Quarry Bay, Hong Kong,
|
|
|
or
any other company which the Agent may, with the consent of the Majority
Lenders, approve from time to time in writing as the technical or
commercial manager of a Ship, such approval not to be unreasonably
withheld;
|
||
|
“Assignment and
Acceptance” means an assignment and acceptance entered into by a
Lender and an assignee of such Lender, and accepted by the Agent, pursuant
to Clause 19.2 hereof, in substantially the form of Schedule 4
hereto;
|
||
|
“AUGUSTA” means the
1996-built bulk carrier of 69,053 deadweight tons registered in the
ownership of Kifissia under Xxxxxxxx Islands flag with the name “AUGUSTA”
and IMO Number 9134189;
|
||
|
“AUSTIN” means the
1995-built bulk carrier of 75,229 deadweight tons registered in the
ownership of Oceanventure under Cypriot flag with the name “AUSTIN” and
IMO Number 9083536 ;
|
||
|
“Availability Period”
means any Business Day during the period commencing on September 18, 2007
and ending on:
|
||
|
(a)
|
in
the case of the Tranche A Loan, the earlier of the Business Day
immediately preceding the Maturity Date and the date on which the Total
Commitments in respect of the Tranche A Loan are cancelled or terminated;
or
|
|
|
(b)
|
in
the case of the Tranche B Loan, the earlier of the third anniversary of
the Closing Date and the date on which the Total Commitments in respect of
the Tranche B Loan are fully borrowed, cancelled or
terminated;
|
|
|
“Cash Equivalents” means
(a) securities issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America
is pledged in support thereof), (b) time deposits, certificates of deposit
or deposits in the interbank market of any commercial bank of recognized
standing organized under the laws of the United States of America, any
state thereof or any foreign jurisdiction having capital and surplus in
excess of $500,000,000, and rated at least A+ or the equivalent thereof by
Standard & Poor’s Rating Services in respect of both (a) and (b)
above, in each case having maturities of not more than ninety (90) days
from the date of acquisition; and (c) such other securities or instruments
as the Majority Lenders shall agree in
writing;
|
||
|
“Change of Control” means (a) any “person” (as such
term is used in Section 13(d) and 14(d) of the Exchange Act) who is not
now a beneficial owner of the Borrower becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 20% of the total voting power or ownership
interest of the Borrower, or (b) the board of directors of the Borrower
ceases to consist of a majority of the directors existing as of the date
of this Agreement or directors nominated by at least two-thirds (2/3) of
the then existing directors;
|
|
|
“Charter Assignment” means, in relation
to a Ship, an assignment of any time or voyage charter party for such Ship
with a duration in excess of 12 months, in the form set out in Appendix C
hereto;
|
|
|
“Classification Society”
means, in relation to a Ship, the American Bureau of Shipping, Det Norske
Veritas, Lloyd’s Register, Bureau Veritas, Nippon Kaiji Kyokai,
Germanischer Xxxxx or such other first-class vessel classification society
which is a member of IACS that the Agent has, with the consent of the
Majority Lenders, approved in writing, such approval not to be
unreasonably withheld;
|
|
|
“Closing Date” means
October 1, 2007;
|
|
|
“Collateral” means all
property (including, without limitation, any proceeds thereof) referred to
in the Finance Documents that is or is intended to be subject to any
Security Interest in favor of the Security Trustee, for the benefit of the
Lenders (and the Swap Bank if the Borrower enters into a Master Agreement
with the Swap Bank), securing the obligations of the Borrower or a
Guarantor under this Agreement or any other Finance
Document;
|
|
|
“Collateral Maintenance
Ratio” has the meaning assigned such term in Clause
10.3(d);
|
|
|
“Commitment” means, at any time
with respect to each Lender and each Tranche of the Loan, the maximum sum
to be advanced at such time by such Lender to the Borrower pursuant to
this Agreement, which sum as of the Effective Date shall be the amount set
forth opposite such Lender’s name on Schedule 1 hereto, and “Total Commitments” means
the aggregate of the Commitments of all the Lenders in respect of either
Tranche or both Tranches, as the context may require, in each case as such
amount may be reduced, cancelled or terminated in accordance with this
Agreement (including, without limitation, as provided in Clause 2.1(a)
hereof in respect of the Tranche A Loan);
|
|
|
“Compliance Certificate”
means the certificate executed by the Borrower’s chief financial officer
or equivalent officer in the form set out in Appendix B
hereto;
|
|
|
“Confirmation” and “Early Termination Date”,
in relation to any continuing Designated Transaction, have the meanings
assigned such terms in the Master Agreement;
|
|
|
“Consolidated Net Worth”
means, at any time, shareholders’ equity of the Borrower on a consolidated
basis determined in accordance with GAAP;
|
|
|
“Contractual Currency”
has the meaning assigned such term in Clause 16.5;
|
|
|
“Credit Parties” means
the Lenders, the Security Trustee, the Agent, the Lead Arranger, the
Bookrunner and, if the Borrower enters into the Master Agreement, the Swap
Bank, and in the singular means any of
them;
|
|
“Deed of Covenant” means
in relation to each Ship, if a deed of covenant is appropriate given the
Mortgage on that Ship, a deed of covenant collateral to the Mortgage on
that Ship, in the form set out in Appendix X-0, X-0, X-0 or H-7 hereto, as
the case may be;
|
||
|
“Delivery Date” has the
meaning assigned such term in Clause 8.2(b);
|
||
|
“Designated Transaction”
means a Transaction which fulfills the following
requirements:
|
||
|
(a)
|
it
is entered into by the Borrower and the Swap Bank pursuant to the Master
Agreement;
|
|
|
(b)
|
its
purpose is to hedge the Borrower’s exposure under this Agreement to
fluctuations in the interest rate arising from the funding of the Loan (or
any part thereof) for a period expiring no later than the Maturity
Date;
|
|
|
(c)
|
the
notional principal amount of such Transaction, together with all other
continuing Designated Transactions, does not and in the future (taking
into account the scheduled amortization thereof) will not exceed the
aggregate amount of the Loan scheduled to be outstanding from time to
time; and
|
|
|
(d)
|
it
is designated by the Swap Bank, by delivery by the Swap Bank to the Agent
of a notice of designation, as a Designated Transaction for the purposes
of the Finance Documents;
|
|
|
“Disbursement
Authorization” has the meaning assigned such term in Clause
8.2(b);
|
||
|
“Dollars” and “$” means the lawful
currency for the time being of the United States of
America;
|
||
|
Drawdown Notice” means a
notice in the form set out in Schedule 2 hereto (or in any other form
which the Agent approves or reasonably requires);
|
||
|
“Earnings” means, in
respect of each Ship, all moneys whatsoever which are now, or later
become, payable (actually or contingently) to the owner of such Ship and
which arise out of the use or operation of such Ship, including (but not
limited to):
|
||
|
(a)
|
all
freight, hire and passage moneys, compensation payable to such owner in
the event of requisition of such Ship for hire, remuneration for salvage
and towage services, demurrage and detention moneys and damages for breach
(or payments for variation or termination) of any charterparty or other
contract for the employment of such Ship;
|
|
|
(b)
|
all
moneys which are at any time payable under Insurances in respect of loss
of earnings; and
|
|
|
(c)
|
if
and whenever such Ship is employed on terms whereby any moneys falling
within paragraphs (a) or (b) above are pooled or shared with any other
person, that proportion of the net receipts of the relevant pooling or
sharing arrangement which is attributable to such
Ship;
|
|
|
“Earnings Account” means,
collectively, the Kifissia Earnings Account, Oceanclarity Earnings
Account, Oceanenergy Earnings Account, Oceanfighter Earnings Account,
Oceanprime Earnings Account, Oceanresources Earnings Account, Oceanship
Earnings Account, Oceanstrength Earnings Account, Oceantrade Earnings
Account, Oceanventure Earnings Account, Oceanwealth Earnings Account and
each other earnings account established with the Agent by the Borrower, an
Additional Ship Owner or a Replacement Ship Owner, and in the singular
means any one of them;
|
|||
|
“Earnings Account
Pledge” means a first
priority pledge of the relevant Earnings Account in the form set out in
Appendix D hereto;
|
|||
|
“Earnings
Assignment” means, in relation
to a Ship, the first priority assignment of the Earnings and any
Requisition Compensation of such Ship in the form set out in Appendix E
hereto;
|
|||
|
“EBITDA” means, for any
accounting period, the consolidated net income of the Group for that
accounting period:
|
|||
|
(a)
|
plus,
to the extent deducted in computing consolidated net income of the Group
for that accounting period, the sum, without duplication,
of:
|
||
|
(i)
|
all
federal, state, local and foreign taxes and tax
distributions;
|
||
|
(ii)
|
Net
Interest Expense;
|
||
|
(iii)
|
depreciation,
depletion, amortization of intangibles and other non-cash charges or
non-cash losses (including non-cash transaction expenses and the
amortization of debt discounts) and any extraordinary losses not incurred
in the ordinary course of business; and
|
||
|
(iv)
|
any
drydocking expenses;
|
||
|
(b)
|
minus,
to the extent added in computing consolidated net income of the Group for
that accounting period, any non-cash income or non-cash gains and any
extraordinary gains on asset sales or otherwise not incurred in the
ordinary course of business;
|
||
|
all
determined on a consolidated basis in accordance with GAAP and as shown in
the consolidated statements of income for the Group;
|
|||
|
“Effective Date” has the
meaning assigned such term in Clause 25.1;
|
|||
|
“Eligible Assignee”
means
|
|||
|
(a)
|
any
commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of
$1,000,000,000;
|
||
|
(b)
|
any
commercial bank organized under the laws of any other country that is a
member of the OECD or has concluded special lending arrangements with the
International Monetary Fund Associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, so long as such bank is acting through
a branch or agency located in the United States or in the country in which
it is organized or another country that is described in this clause
(b);
|
||
|
(c)
|
the
central bank of any country that is a member of the
OECD;
|
|
|
(d)
|
any
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership, trust or other entity) that (i) is
not affiliated with the Borrower, (ii) is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and (iii) has total assets in excess of $1,000,000,000;
and
|
|
|
(e)
|
any
other Person (other than an Affiliate of the Borrower or a Guarantor)
whose primary business is not owning, managing or chartering vessels
approved by the Agent and the Borrower and having assets in excess of
$1,000,000,000, such approval not to be unreasonably withheld;
|
|
|
“Environmental Law” means
any law relating to pollution or protection of the environment, to the
carriage of Environmentally Sensitive Material or to actual or threatened
releases of Environmentally Sensitive Material;
|
||
|
“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law;
|
||
|
“Environmentally Sensitive
Material” means oil, oil products and any other substance
(including any chemical, gas or other hazardous or noxious substance)
which is (or is capable of being or becoming) polluting, toxic or
hazardous;
|
||
|
“Estate” has the meaning
assigned such term in Clause 26.1;
|
||
|
Event of Default” means
any of the events or circumstances described in Clause
14.1;
|
||
|
“Exchange Act” means the
United States Securities Exchange Act of 1934, as
amended;
|
||
|
“Expected Drawdown Date”
means, in respect of an Advance of all or a portion of any Tranche of the
Loan available under this Agreement, the date requested by the Borrower in
the Drawdown Notice for such Advance to be made;
|
||
|
“Fair Market Value”
means, in relation to each Ship, the market value of such Ship at any date
that is shown by the average of two (2) valuations each prepared and
addressed to the Agent:
|
||
|
(a)
|
as
at a date not more than 30 days prior to the date such valuation is
delivered to the Agent;
|
|
|
(b)
|
by
an Approved Ship Broker;
|
|
|
(c)
|
with
or without physical inspection of that Ship (as the Agent may
require);
|
|
|
(d)
|
on
the basis of a sale for prompt delivery for cash on normal arm’s length
commercial terms as between a willing seller and a willing buyer, free of
any existing charter or other contract of employment (and with no value to
be given to any pooling arrangements);
and
|
|
|
(e)
|
after
deducting the estimated amount of the usual and reasonable expenses which
would be incurred in connection with the sale;
|
|
|
“Fee Letter” means the letter
dated August 30, 2007 from Nordea Bank Norge ASA to the
Borrower;
|
||
|
“Finance Documents”
means:
|
||
|
(a)
|
this
Agreement;
|
|
|
(b)
|
the
Notes;
|
|
|
(c)
|
the
Master Agreement (if executed);
|
|
|
(d)
|
the
Charter Assignments;
|
|
|
(e)
|
the
Earnings Account Pledges;
|
|
|
(f)
|
the
Earnings Assignments;
|
|
|
(g)
|
the
Insurance Assignments;
|
|
|
(h)
|
the
Mortgages and any related Deed of Covenant;
|
|
|
(i)
|
the
Second Statutory Mortgages;
|
|
|
(j)
|
the
Share Pledges; and
|
|
|
(k)
|
any
other document (whether creating a Security Interest or not) which is
executed at any time by any Obligor or any other person as security for,
or to establish any form of subordination or priorities arrangement in
relation to, any amount payable to or for the benefit of a Credit Party
under this Agreement or any of the documents referred to in this
definition;
|
|
|
“Financial Indebtedness”
means, in relation to a person (the “debtor”), a liability of
the debtor:
|
||
|
(a)
|
for
principal, interest or any other sum payable in respect of any moneys
borrowed or raised by the debtor;
|
|
|
(b)
|
under
any bond, note or other security issued by the debtor;
|
|
|
(c)
|
under
any acceptance credit, guarantee or letter of credit facility made
available to the debtor;
|
|
|
(d)
|
under
a financial lease, a deferred purchase consideration arrangement or any
other agreement having the commercial effect of a borrowing or raising of
money by the debtor;
|
|
|
(e)
|
under
any interest or currency swap or any other kind of derivative transaction
entered into by the debtor or, if the agreement under which any such
transaction is entered into requires netting of mutual liabilities, the
liability of the debtor for the net amount;
or
|
|
|
(f)
|
under
a guarantee, indemnity or similar obligation entered into by the debtor in
respect of a liability of another person which would fall within (a) to
(e) if the references to the debtor referred to the other
person;
|
|
|
“Financial Year” means in
relation to the Group, each period of one (1) year commencing on January 1
of each year and ending on December 31 of such year in respect of which
its consolidated accounts are or ought to be prepared;
|
||
|
“First Expected Drawdown
Date” means the Expected Drawdown Date requested by the Borrower in
the first Drawdown Notice submitted by the Borrower to the Agent for an
Advance of all or a portion of either Tranche of the Loan available under
this Agreement;
|
||
|
“Funded Debt” means, on a
consolidated basis for the Borrower (without duplication), the sum of (a)
all Financial Indebtedness of the Borrower on a consolidated basis, (b)
all obligations to pay a specific purchase price for goods or services
whether or not delivered or accepted (including take-or-pay and similar
obligations which in accordance with GAAP would be shown on the liability
side of a balance sheet), (c) all net obligations under interest rate
agreements and (d) all guarantees of non-consolidated entity obligations,
provided that
balance sheet accruals for future drydock expenses shall not be classified
as Funded Debt;
|
||
|
“GAAP” has the meaning
assigned such term in Clause 1.6;
|
||
|
“Group” means the
Borrower and its subsidiaries (whether direct or indirect and including,
but not limited to, the Guarantors) from time to time during the Security
Period;
|
||
|
“Guaranteed Obligations”
has the meaning assigned such term in Clause 11.1;
|
||
|
“Guaranteed Party” has
the meaning assigned such term in Clause 11.1;
|
||
|
“Guarantee” has the
meaning assigned such term in Clause 11.1;
|
||
|
“HELENA” means the
1999-built bulk carrier of 73,744 deadweight tons registered in the
ownership of Oceanenergy under Xxxxxxxx Islands flag with the name
“HELENA” and IMO Number 9185736;
|
||
|
“IACS” means the
International Association of Classification Societies;
|
||
|
“Insurances” means, in
relation to a Ship:
|
||
|
(a)
|
all
policies and contracts of insurance, including entries of such Ship in any
protection and indemnity or war risks association, which are effected in
respect of such Ship, her Earnings or otherwise in relation to her;
and
|
|
|
(b)
|
all
rights and other assets relating to, or derived from, any of the
foregoing, including any rights to a return of a
premium;
|
|
|
“Insurance Assignment”
means, in relation to a Ship, the first priority assignment of the
Insurances of such Ship in the form set out in Appendix F
hereto;
|
||
|
“Interest Period” means a
period determined in accordance with Clause
5;
|
||
|
“Intermediate Holding
Companies” means, collectively, Kifissia Star Shareholders,
Oceanclarity Shareholdings, Oceanenergy Shareholdings, Oceanfighter
Shareholders, Oceanprime Shareholdings, Oceanresourses Shareholdings,
Oceanship Shareholdings, Oceanstrength Shareholdings, Oceantrade
Shareholdings, Oceanventure Shareholdings, Oceanwealth Shareholdings and
each such other wholly owned subsidiary of the Borrower designated as the
sole shareholder in respect of each Additional Ship Owner, and in respect
of each Guarantor “Intermediate Holding
Company” means:
|
||
|
(a)
|
Kifissia
Star Shareholders, in respect of Kifissia;
|
|
|
(b)
|
Oceanclarity
Shareholdings, in respect of Oceanclarity
|
|
|
(c)
|
Oceanenergy
Shareholdings, in respect of Oceanenergy;
|
|
|
(d)
|
Oceanfighter
Shareholders, in respect of Oceanfighter;
|
|
|
(e)
|
Oceanprime
Shareholdings, in respect of Oceanprime;
|
|
|
(f)
|
Oceanresourses
Shareholdings, in respect of Oceanresources;
|
|
|
(g)
|
Oceanship
Shareholdings, in respect of Oceanship;
|
|
|
(h)
|
Oceanstrength
Shareholdings, in respect of Oceanstrength;
|
|
|
(i)
|
Oceantrade
Shareholdings, in respect of Oceantrade;
|
|
|
(j)
|
Oceanventure
Shareholdings, in respect of Oceanventure; and
|
|
|
(k)
|
Oceanwealth
Shareholdings, in respect of Oceanwealth;
|
|
|
“ISM Code” means in
relation to its application to each Ship and its
operation:
|
||
|
(a)
|
‘The
International Management Code for the Safe Operation of Ships and for
Pollution Prevention’, currently known or referred to as the ‘ISM Code’
(including the guidelines on its implementation), adopted by the
International Maritime Organization (“IMO”) as Resolution
A.741(18) and Resolution A.913(22) (superseding Resolution A.788(19)) (and
the terms “safety
management system”, “Safety Management
Certificate” and “Document of Compliance”
have the same meanings as are given to them in the ISM Code);
and
|
|
|
(b)
|
all
further resolutions, circulars, codes, guidelines, regulations and
recommendations which are now or in the future issued by or on behalf of
the IMO or any other entity with responsibility for implementing the ISM
Code;
|
|
|
as
the same may be amended, supplemented or replaced from time to
time;
|
||
|
“ISM Code Documentation”
includes, in respect of a Ship:
|
||
|
(a)
|
the
Document of Compliance and Safety Management Certificate issued pursuant
to the ISM Code in relation to such Ship within the periods specified by
the ISM Code;
|
|
|
(b)
|
all
other documents and data which are relevant to the safety management
system and its implementation and verification which the Agent may
require; and
|
||
|
(c)
|
any
other documents which are prepared or which are otherwise relevant to
establish and maintain such Ship’s compliance or the compliance of the
Borrower or the Approved Manager with the ISM Code which the Agent may
require;
|
||
|
“ISM Responsible Person”
means, in respect of a Ship:
|
|||
|
(a)
|
each
and every person who has assumed responsibility for the operation of such
Ship and has agreed to take over or is required to assume responsibility
for the performance or observance of the duties and responsibilities
imposed by the ISM Code; and
|
||
|
(b)
|
each
and every person ashore who is a ‘designated person’ for the purposes of
the ISM Code with direct access to the highest level of management of such
Ship’s owner or operator and who, in that capacity, has under the ISM Code
responsibility and authority which includes:
|
||
|
(i)
|
monitoring
the safety and pollution prevention aspects of the operation of such Ship;
and
|
||
|
(ii)
|
ensuring
that adequate resources and shore-based support are supplied, as required,
in each case, under the ISM Code;
|
||
|
“ISPS
Code” means in
relation to its application to the Borrower, the Approved Manager, a Ship
and its operation, the
International Ship and Port Facility Security Code constituted pursuant to
resolution A.924(22) of the IMO adopted by a Diplomatic Conference of the
IMO on Maritime Security on 13 December 2002 and now set out in Chapter
XI-2 of the Safety of Life at Sea Convention (SOLAS) 1974 (as
amended);
|
|||
|
“ISPS Code Documentation”
includes:
|
|||
|
(a)
|
the
International Ship Security Certificate issued pursuant to the ISPS Code
in relation to each Ship within the period specified in the ISPS Code;
and
|
||
|
(b)
|
all
other documents and data which are relevant to the ISPS Code and its
implementation and verification which the Agent may
require;
|
||
|
“JUNEAU” means the
1990-built bulk carrier of 149,495 deadweight tons registered in the
ownership of Oceanresources under Maltese flag with the name “JUNEAU” and
IMO Number 8906688;
|
|||
|
“Kifissia Earnings
Account” means the account established by Kifissia with the Agent
into which Kifissia shall deposit or cause to be deposited all Earnings
and any Requisition Compensation of its Ship;
|
|||
|
“Kifissia Star
Shareholders” means Kifissia Star Shareholders Inc., a Xxxxxxxx
Islands corporation;
|
|||
|
“LANSING” means the
1996-built bulk carrier of 73,040 deadweight tons registered in the name
of Oceanstrength under Xxxxxxxx Islands flag with the name “LANSING” and
IMO Number 9113410;
|
|
|
“Lenders” means,
collectively, the Existing Lenders and any bank or financial institution
which becomes a lender pursuant to Clause 19 or Clause 24 hereof, and in
the singular means any one of them;
|
|
|
“Lending Office” means,
with respect to any Lender, the office of such Lender specified as its
“Lending Office” under its name on Schedule 1 hereto or in the Assignment
and Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent;
|
|
|
“LIBOR” means (a) the
applicable Screen Rate or (b) if no Screen Rate is available for the
relevant Interest Period the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its request quoted by
the Reference Banks to leading banks in the London interbank market, in
the case of either (a) or (b) at or about 11:00 a.m. (London time) on the
Quotation Date for the offering of deposits in the currency of the Loan
for a period comparable to the relevant Interest Period, in each case for
an amount approximately equal to the principal amount of the Advance to be
outstanding during the applicable Interest Period;
|
|
|
“Liquidity” means, at any time, the sum of (a)
cash, (b) Cash Equivalents and (c) undrawn availability under the Tranche
A Loan with a maturity in excess of 12 months;
|
|
|
“Loan” means the
aggregate principal amount of the Advances outstanding under this
Agreement from time to time;
|
|
|
“Major Casualty” means,
in relation to a Ship, any casualty to such Ship in respect of which the
claim or the aggregate of the claims against all insurers, before
adjustment for any relevant franchise or deductible, exceeds $1,000,000 or
the equivalent in any other currency;
|
|
|
“Majority Lenders” means,
at any time, Lenders holding more than 66-2/3% of the Loan or, if no such
principal amount is then outstanding, Lenders having more than 66-2/3% of
the Total Commitments then effect;
|
|
|
“Manager’s Undertaking”
means, in relation to a Ship, the letter executed or to be executed by an
Approved Manager in the form set out in Appendix F-1 or F-2 (as the case
may be) hereto;
|
|
|
“Mandatory Commitment Reduction
Amount” has the meaning assigned such term in Clause
7.9;
|
|
|
“Mandatory Prepayment
Ratio” means a fraction, the numerator of which is the Fair Market
Value of the relevant Ship and denominator of which is the aggregate Fair
Market Value of all of the Ships;
|
|
|
“Margin” means, in
respect of each Tranche of the Loan, 1.30 percent per annum from the
Effective Date;
|
|
“Margin Stock” has the
meaning specified in Regulation U of the Board of Governors of the Federal
Reserve System and any successor regulations thereto, as in effect from
time to time;
|
|
|
“Master Agreement” means
the agreement dated October 1, 2007 and made between the Borrower and the
Swap Bank on the 2002 ISDA (Multicurrency - Cross Border) form and the
schedule thereto (including each Transaction entered into, and the
Confirmation relating to it exchanged, under said agreement), as amended,
to hedge the exposure of the Borrower to interest rate fluctuations under
this Agreement;
|
|
|
“Maturity Date” means the
eighth anniversary of the Closing Date;
|
|
|
“Mortgage” means, in
relation to a Ship, a first priority or, as the case may be, preferred
mortgage on such Ship under the relevant Approved Flag, in the form set
out in Appendix X-0, X-0, X-0, X-0, X-0, G-6 or G-7 hereto, as the case
may be, as the same may be amended by any amendment or addendum thereto in
form and substance satisfactory to the Agent;
|
|
|
“Negotiation Period” has
the meaning assigned such term in Clause 4.7;
|
|
|
“Net Interest Expense”
means the aggregate of all interest, commitment and other fees,
commissions, discounts and other costs, charges or expenses accruing due
from all the members the Group during the relevant accounting period less
interest income received, determined on a consolidated basis in accordance
with GAAP and as shown in the consolidated statements of income for the
Group;
|
|
|
“Notes” means,
collectively, the Tranche A Loan Note and the Tranche B Loan Note, and in
the singular means either one of them;
|
|
|
“Obligors” means the
Borrower and the Guarantors, and in the singular means any of
them;
|
|
|
“OFAC” has the meaning
assigned such term in Clause 9.18;
|
|
|
“Oceanclarity Earnings
Account” means the account established by Oceanclarity with the
Agent into which Oceanclarity shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its Ship;
|
|
|
“Oceanenergy Earnings
Account” means the account established by Oceanenergy with the
Agent into which Oceanenergy shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its Ship;
|
|
|
“Oceanfighter Earnings
Account” means the account established by Oceanfighter with the
Agent into which Oceanfighter shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its Ship;
|
|
|
“Oceanprime Earnings
Account” means the account established by Oceanprime with the Agent
into which Oceanprime shall deposit or cause to be deposited all Earnings
and any Requisition Compensation of its Ship;
|
|
|
“Oceanresources Earnings
Account” means the account established by Oceanresources with the
Agent into which Oceanresources shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its
Ship;
|
|
“Oceanship Earnings
Account” means the account established by Oceanship with the Agent
into which Oceanship shall deposit or cause to be deposited all Earnings
and any Requisition Compensation of its Ship;
|
|
|
“Oceanstrength Earnings
Account” means the account established by Oceanstrength with the
Agent into which Oceanstrength shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its Ship;
|
|
|
“Oceantrade Earnings
Account” means the account established by Oceantrade with the Agent
into which Oceantrade shall deposit or cause to be deposited all Earnings
and any Requisition Compensation of its Ship;
|
|
|
“Oceanventure Earnings
Account” means the account established by Oceanventure with the
Agent into which Oceanventure shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its Ship;
|
|
|
“Oceanwealth Earnings
Account” means the account established by Oceanwealth with the
Agent into which Oceanwealth shall deposit or cause to be deposited all
Earnings and any Requisition Compensation of its Ship;
|
|
|
“Oceanclarity
Shareholdings” means Oceanclarity Shareholdings Limited, a Xxxxxxxx
Islands corporation;
|
|
|
“Oceanenergy
Shareholdings” means Oceanenergy Shareholdings Limited, a Xxxxxxxx
Islands corporation;
|
|
|
“Oceanfighter
Shareholders” means Oceanfighter Shareholders Inc., a Xxxxxxxx
Islands corporation;
|
|
|
“Oceanprime
Shareholdings” means Oceanprime Shareholdings Limited, a Xxxxxxxx
Islands corporation;
|
|
|
“Oceanresources
Shareholdings” means Oceanresources Shareholdings Limited, a
Xxxxxxxx Islands corporation;
|
|
|
“Oceanship Shareholdings”
means Oceanship Shareholdings Limited, a Xxxxxxxx Islands
corporation;
|
|
|
“Oceanstrength
Shareholdings” means Oceanstrength Shareholdings Limited, a
Xxxxxxxx Islands corporation;
|
|
|
“Oceantrade
Shareholdings” means Oceantrade Shareholdings Limited, a Xxxxxxxx
Islands corporation;
|
|
|
“Oceanventure
Shareholdings” means Oceanventure Shareholdings Limited, a Xxxxxxxx
Islands corporation;
|
|
|
“Oceanwealth
Shareholdings” means Oceanwealth Shareholdings Limited, a Xxxxxxxx
Islands corporation;
|
|
“OLINDA” means the
1996-built bulk carrier of 79,643 gross tons registered in the ownership
of Oceanfighter under Maltese flag with the name “OLINDA” and IMO Number
9033971;
|
||
|
“Original Fleet” means,
collectively, “AUSTIN”, “HELENA”, “JUNEAU”, “LANSING”, “PIERRE”, “TOPEKA”
and “TRENTON” and, in the singular means any of them;
|
||
|
“PATRIOT Act” has the
meaning assigned such term in Clause 8.1(a)(ii);
|
||
|
“Payment Currency” has
the meaning assigned such term in Clause 16.5;
|
||
|
“Permitted Security
Interests” means:
|
||
|
(a)
|
Security
Interests created by the Finance Documents;
|
|
|
(b)
|
liens
for unpaid master’s and crew’s wages in accordance with usual maritime
practice;
|
|
|
(c)
|
liens
for salvage;
|
|
|
(d)
|
liens
arising by operation of law for not more than two (2) months’ prepaid hire
under any charter in relation to a Ship not prohibited by this
Agreement;
|
|
|
(e)
|
liens
for master’s disbursements incurred in the ordinary course of trading and
any other lien arising by operation of law or otherwise in the ordinary
course of the operation, repair or maintenance of a Ship, provided that such liens
do not secure amounts more than 30 days overdue (unless the overdue amount
is being contested by the Borrower or a Guarantor (as the case may be) in
good faith by appropriate steps);
|
|
|
(f)
|
any
Security Interest created in favor of a plaintiff or defendant in any
action of the court or tribunal before whom such action is brought as
security for costs and expenses where the Borrower or a Guarantor (as the
case may be) is prosecuting or defending such proceedings or arbitration
in good faith by appropriate steps provided such Security Interest does
not (and is not likely to) result in any sale, forfeiture or loss of a
Ship; and
|
|
|
(g)
|
Security
Interests arising by operation of law in respect of taxes which are not
overdue for payment or in respect of taxes being contested in good faith
by appropriate steps and in respect of which appropriate reserves have
been made;
|
|
|
“Pertinent Jurisdiction”
means, in relation to a company:
|
||
|
(a)
|
the
country under the laws of which the company is incorporated or
formed;
|
|
|
(b)
|
a
country in which the company’s central management and control is or has
recently been exercised;
|
|
|
(c)
|
a
country in which the overall net income of the company is subject to
corporation tax, income tax or any similar
tax;
|
|
|
(d)
|
a
country in which assets of the company (other than securities issued by,
or loans to, related companies) having a substantial value in relation to
the total assets of such company are situated, in which the company
maintains a permanent place of business, or in which a Security Interest
created by the company must or should be registered in order to ensure its
validity or priority;
|
|
|
(e)
|
a
country the courts of which have jurisdiction to make a winding up,
administration or similar order in relation to the company or which would
have such jurisdiction if their assistance were requested by the courts of
a country referred to in paragraphs (b) or (c) above;
and
|
|
|
(f)
|
any
political subdivision of any of the foregoing;
|
|
|
“PIERRE” means the
1996-built bulk carrier of 70,316 deadweight tons registered in the
ownership of Oceanwealth under Xxxxxxxx Islands flag with the name
“PIERRE” and IMO Number 9109483;
|
||
|
“PINK SANDS” means the
1993-built tanker of 95,000 deadweight tons registered in the ownership of
Oceanclarity under Maltese flag with the name “PINK SANDS” and IMO Number
8920866;
|
||
|
“Potential Event of
Default” means an event or circumstance which, with the giving of
any notice, the lapse of time, and/or a determination of the Majority
Lenders would constitute an Event of Default;
|
||
|
“Quotation Date” means,
in relation to any Interest Period (or any other period) for which an
interest rate is to be determined under any provision of a Finance
Document) the day on which quotations would ordinarily be given by leading
banks in the London Interbank Market for deposits in the currency in
relation to which such rate is to be determined for delivery on the first
day of that Interest Period or other period;
|
||
|
“Ratable Portion” means,
as to any Lender at any time, (a) with respect to any Advance of a
Tranche, the percentage obtained by dividing such Lender’s Commitment in
relation to such Tranche by the Total Commitments in relation to such
Tranche, and (b) in all other cases, a fraction (expressed as a
percentage) the numerator of which is the Commitment of such Lender at
such time and the denominator of which is the Total Commitments at such
time, provided
that if the Ratable Portion of any Lender is to be determined after
the Total Commitment in respect of a Tranche has been terminated, then the
percentages of the Lenders shall be determined immediately prior (and
without giving effect) to such termination;
|
||
|
“Reference Banks” means,
for purposes of LIBOR, the reference banks chosen from time
to time by the British Bankers’ Association;
|
||
|
“Register” has the meaning assigned such
term in Clause 19.2(c);
|
||
|
“Repayment Date” means a
date on which a repayment is required to be made under Clause
7;
|
||
|
“Replacement Ship” has the meaning assigned such term
in Clause 7.9(b);
|
||
|
“Replacement Ship Owner”
means a company which is a direct or indirect wholly-owned subsidiary of
the Borrower incorporated in a jurisdiction acceptable to the Lenders (in
their reasonable discretion) which shall be the owner of a Replacement
Ship and which will become a Guarantor hereunder pursuant to an Accession
Agreement, it being understood that any Replacement Ship Owner may be
incorporated in an Approved Flag State without the consent of the
Lenders;
|
||
|
“Requisition
Compensation” includes all compensation or other moneys payable by
reason of any act or event such as is referred to in paragraph (b) of the
definition of “Total Loss”;
|
||
|
“RICHMOND” means the
1995-built bulk carrier of 70,000 deadweight tons registered in the
ownership of Oceanprime under Xxxxxxxx Islands flag with the name
“RICHMOND” and IMO Number 9085936;
|
||
|
“Screen Rate” means, in
relation to LIBOR, the British Bankers’ Association Interest Settlement
Rate for the relevant currency and period displayed on the appropriate
page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or
service displaying the appropriate rate after consultation with the
Borrower and the Majority Lenders;
|
||
|
“Second Statutory
Mortgage” means a second priority Cypriot mortgage and related deed
of covenants on each of the AUSTIN and TRENTON, in form and substance
satisfactory to the Agent;
|
||
|
“Secured Liabilities”
means all liabilities which the Obligors or any of them have, at the date
of this Agreement or at any later time or times, under or by virtue of the
Finance Documents or any judgment relating to the Finance Documents; and
for this purpose, there shall be disregarded any total or partial
discharge of these liabilities, or variation of their terms, which is
effected by, or in connection with, any bankruptcy, liquidation,
arrangement or other procedure under the insolvency laws of any
country;
|
||
|
“Security Interest”
means:
|
||
|
(a)
|
a
mortgage, charge or pledge, any maritime or other lien or any other
security interest of any kind;
|
|
|
(b)
|
the
rights of the plaintiff under an action in rem in which the
vessel concerned has been arrested or a writ has been issued or similar
steps taken; and
|
|
|
(c)
|
any
arrangement entered into by a person (A) the effect of which is to place
another person (B) in a position which is similar, in economic terms, to
the position in which B would have been had he held a security interest
over an asset of A; but this does not apply to a right of set off or
combination of accounts conferred by the standard terms of business of a
bank or financial institution;
|
|
|
“Security Period” means
the period commencing on the date of this Agreement and ending on the date
on which the Agent notifies the Borrower that:
|
||
|
(a)
|
all
amounts which have become due for payment by any Obligor under the Finance
Documents have been paid;
|
|
|
(b)
|
no
amount is owing or has accrued (without yet having become due for payment)
under any Finance Document and all Commitments have been terminated;
and
|
|
|
(c)
|
no
Obligor has any future or contingent liability under Clause 15, 16 or 17
below or any other provision of this Agreement or another Finance
Document;
|
|
|
“Seller’s Bank” has the
meaning assigned such term in Clause 8.2(b);
|
||
|
“Share Pledge” means
the pledge of the share
capital of each Guarantor in the form set out in Appendix I
hereto;
|
||
|
“Ships” means,
collectively, (a) the Original Fleet, (b) the AUGUSTA, OLINDA, PINK SANDS,
RICHMOND and any other Additional Ships and (c) without duplication, any
Replacement Ships substituted for any of the foregoing, and in the
singular means any of them;
|
||
|
“Subsequent Advance” has
the meaning assigned such term in Clause 5.3(b);
|
||
|
“TOPEKA” means the
2000-built bulk carrier of 74,716 deadweight tons registered in the
ownership of Oceantrade under Maltese flag with the name “TOPEKA” and IMO
Number 9211585;
|
||
|
“Total Capitalization”
means the sum of Funded Debt and Consolidated Net
Worth;
|
||
|
“Total Loss” means, in
relation to a Ship:
|
||
|
(a)
|
actual,
constructive, compromised, agreed or arranged total loss of such
Ship;
|
|
|
(b)
|
any
expropriation, confiscation, requisition or acquisition of such Ship,
whether for full consideration, a consideration less than her proper
value, a nominal consideration or without any consideration, which is
effected by any government or official authority or by any person or
persons claiming to be or to represent a government or official authority,
excluding a requisition for hire for a fixed period not exceeding one year
without any right to an extension;
|
|
|
(c)
|
any
final and non-appealable condemnation of such Ship by any tribunal or by
any person or persons claiming to be a tribunal; or
|
|
|
(d)
|
any
capture, seizure or detention of such Ship (including any hijacking or
theft) unless she is within 45 days redelivered to the full control of its
owner;
|
|
|
“Total Loss Date” means,
in relation to a Ship:
|
||
|
(a)
|
in
the case of an actual loss of such Ship, the date on which it occurred or,
if that is unknown, the date when such Ship was last heard
of;
|
|
|
(b)
|
in
the case of a constructive, compromised, agreed or arranged total loss of
such Ship, the earliest of:
|
|
|
(i)
|
the
date on which a notice of abandonment is given to the insurers;
and
|
||
|
(ii)
|
the
date of any compromise, arrangement or agreement made by or on behalf of
the owner with the Ship’s insurers in which the insurers agree to treat
such Ship as a total loss; and
|
||
|
(c)
|
in
the case of any other type of total loss, on the date (or the most likely
date) on which it appears to the Majority Lenders that the event
constituting the total loss occurred;
|
||
|
“Tranche A
Loan” has the meaning
assigned such term in the recitals;
|
|||
|
“Tranche A Loan
Note” means a
promissory note of the Borrower, substantially in the form of Appendix H-1
hereto, payable to the order of the Agent evidencing the aggregate
indebtedness of the Borrower under the Tranche A Loan;
|
|||
|
“Tranche B
Loan” has the meaning
assigned such term in the recitals;
|
|||
|
“Tranche B Loan
Note” means a
promissory note of the Borrower, substantially in the form of Appendix H-2
hereto, payable to the order of the Agent evidencing the aggregate
indebtedness of the Borrower under the Tranche B Loan;
|
|||
|
“Tranches” means, collectively, the Tranche
A Loan and the Tranche B Loan, and in the singular means either one of
them;
|
|||
|
“Transaction” has the
meaning assigned such term in the Master Agreement; and
|
|||
|
“TRENTON” means the
1995-built bulk carrier of 75,229 deadweight tons registered in the name
of Oceanship under Cypriot flag with the name “TRENTON” and IMO Number
9083524.
|
|||
|
1.2
|
Construction of certain
terms. In this Agreement:
|
||
|
“asset” includes every
kind of property, asset, interest or right, including any present, future
or contingent right to any revenues or other payment;
|
|||
|
“company” includes any
corporation, limited liability company, partnership, joint venture,
unincorporated association, joint stock company and
trust;
|
|||
|
“consent” includes an
authorization, consent, approval, resolution, license, exemption, filing,
registration, notarization and/or legalization;
|
|||
|
“contingent
liability” means a liability
which is not certain to arise and/or the amount of which remains
unascertained;
|
|||
|
“document” includes a
deed; also a letter, whether in paper or digital form, fax or
telex;
|
|||
|
“expense” means any kind
of cost, charge or expense (including all legal costs, charges and
expenses) and any applicable value added or other
tax;
|
|||
|
“law” includes any form
of delegated legislation, any order or decree, any treaty or international
convention and any regulation or resolution of the United States of
America, any state thereof, the Council of the European Union, the
European Commission, the United Nations or its Security Council or any
other Pertinent Jurisdiction;
|
|
|
“legal or administrative
action” means any legal proceeding or arbitration and any
administrative or regulatory action or investigation;
|
|
|
“liability” includes
every kind of debt or liability (present or future, certain or
contingent), whether incurred as principal or surety or
otherwise;
|
|
|
“months” shall be
construed in accordance with Clause 1.3;
|
|
|
“parent company” has the
meaning assigned such term in Clause 1.4;
|
|
|
“person” includes natural
persons, any company; any state, political sub-division of a state and
local or municipal authority; and any international
organization;
|
|
|
“regulation” includes any
regulation, rule, official directive, request or guideline whether or not
having the force of law of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or
other authority or organization;
|
|
|
“subsidiary” has the
meaning assigned such term in Clause 1.4;
|
|
|
“successor” includes any
person who is entitled (by assignment, novation, merger or otherwise) to
any other person’s rights under this Agreement or any other Finance
Document (or any interest in those rights) or who, as administrator,
liquidator or otherwise, is entitled to exercise those rights; and in
particular references to a successor include a person to whom those rights
(or any interest in those rights) are transferred or pass as a result of a
merger, division, reconstruction or other reorganization of it or any
other person;
|
|
|
“tax” includes any
present or future tax, duty, impost, levy or charge of any kind which is
imposed by any state, any political sub-division of a state or any local
or municipal authority (including any such imposed in connection with
exchange controls), and any connected penalty, interest or
fine.
|
|
|
1.3
|
Meaning of
“month”. A period of one or more “months” ends on the
day in the relevant calendar month numerically corresponding to the day of
the calendar month on which the period started (“the numerically corresponding
day”),
but:
|
|
(a)
|
on
the Business Day following the numerically corresponding day if the
numerically corresponding day is not a Business Day or, if there is no
later Business Day in the same calendar month, on the Business Day
preceding the numerically corresponding day; or
|
|
(b)
|
on
the last Business Day in the relevant calendar month, if the period
started on the last Business Day in a calendar month or if the
last calendar month of the period has no numerically corresponding
day;
|
|
and
“month” and “monthly” shall be
construed accordingly.
|
|
1.4
|
Meaning of
“subsidiary”. A company (S) is a subsidiary of another
company (P) (the “parent
company”) if:
|
|
|
(a)
|
a
majority of the issued equity in S (or a majority of the issued equity in
S which carry unlimited rights to capital and income distributions) are
directly owned by P or are indirectly attributable to P;
or
|
|
|
(b)
|
P
has direct or indirect control over a majority of the voting rights
attaching to the issued shares of S; or
|
|
|
(c)
|
P
has the direct or indirect power to appoint or remove a majority of the
directors of S; or
|
|
|
(d)
|
P
otherwise has the direct or indirect power to ensure that the affairs of S
are conducted in accordance with the wishes of P;
|
|
|
and
any company of which S is a subsidiary is a parent company of
S.
|
||
|
1.5
|
General
Interpretation.
|
|
|
(a)
|
Agreement:
|
|
|
(i)
|
references
to, or to a provision of, a Finance Document or any other document are
references to it as amended or supplemented, whether before the date of
this Agreement or otherwise;
|
|
|
(ii)
|
references
to, or to a provision of, any law include any amendment, extension,
re-enactment or replacement, whether made before the date of this
Agreement or otherwise;
|
|
|
(iii)
|
words
denoting the singular number shall include the plural and vice versa;
and
|
|
|
(iv)
|
Clauses
1.1 to 1.4 and paragraph (a) of this Clause 1.5 apply unless the contrary
intention appears;
|
|
|
(b)
|
References
in Clause 1.1 to a document being in the form of a particular Appendix or
Schedule include references to that form with any modifications to that
form which the Agent approves or reasonably requires;
and
|
|
|
(c)
|
The
clause headings shall not affect the interpretation of this
Agreement.
|
|
|
1.6
|
Accounting
Terms. Unless otherwise specified herein, all accounting
terms used in this Agreement and in the other Finance Documents shall be
interpreted, and all financial statements and certificates and reports as
to financial matters required to be delivered to the Agent or to the
Lenders under this Agreement shall be prepared, in accordance with
generally accepted accounting principles for the United States (“GAAP”) as from time to
time in effect.
|
|
|
1.7
|
Certain Matter Regarding
Materiality. To the extent that any representation,
warranty, covenant or other undertaking of an Obligor in this Agreement or
any other Finance Document is qualified by reference to those which are
not reasonably expected to result in a “material adverse effect” or
language of similar import, no inference shall be drawn therefrom that any
Agent or any Lender or any other Credit Party has knowledge or approves of
any noncompliance by such Obligor with any governmental
rule.
|
|
2
|
FACILITY
|
|
2.1
|
Amount of
facility. Subject to the other provisions of this
Agreement (including without limitation Clause 24), the Lenders severally
agree to make available to the Borrower a loan facility in the aggregate
principal amount of up to $325,000,000 divided into two Tranches as
follows:
|
|
(a)
|
the
Tranche A Loan, which shall be in a principal amount of up to
$200,000,000; provided
that a maximum principal amount of $122,000,000 shall be available
until delivery of the RICHMOND and PINK SANDS (or another vessel of
similar or better age, type, quality, condition and value acceptable to
the Majority Lenders), whereupon an additional $48,000,000 (in the case of
the RICHMOND) and $30,000,000 (in the case of the PINK SANDS or another
vessel of similar or better age, type, quality, condition and value
acceptable to the Majority Lenders) shall become available;
and
|
|
(b)
|
the
Tranche B Loan, which shall be in a principal amount of up to $125,000,000
(provided that the
Commitments in respect of the Tranche B Loan shall be reduced on the third
anniversary of the Closing Date by an amount equal to the undrawn amount
(if any) of the Tranche B Loan on such date).
|
|
2.2
|
Advances. Each
Tranche of the loan facility shall be made available to the Borrower in
multiple Advances on any Business Day from time to time during the
applicable Availability Period, provided that each
Advance shall be in an amount of not less than
$1,000,000.
|
|
2.3
|
Lenders’
participations. Subject to the other provisions of this
Agreement, each Lender shall participate in each Advance in an amount
equal to its Ratable Portion of such Advance as at the relevant Drawdown
Date.
|
|
2.4
|
Purpose of
Loan. The Borrower undertakes to use the Loan only for
the purposes stated in the recitals to this Agreement.
|
|
3
|
DRAWDOWN
|
|
3.1
|
Request for an
Advance. Subject to the following conditions, the
Borrower may request an Advance or multiple Advances to be made by
delivering to the Agent a completed Drawdown Notice in respect of such
Advance or Advances not later than 11:00 a.m. (New York time) five (5)
Business Days prior to the Expected Drawdown Date thereof. The
Agent shall promptly notify the Lenders that it has received a Drawdown
Notice and shall inform each Lender of:
|
|
(a)
|
the
amount of the requested Advance(s), the Expected Drawdown Date and the
Tranche(s) to which such Advance(s)
relate(s);
|
|
(b)
|
the
amount of each Lender’s Ratable Portion of such Advance(s);
and
|
|
|
(c)
|
the
duration of the first Interest Period applicable to such
Advance(s).
|
|
|
3.2
|
Conditions to
availability. The conditions referred to in Clause 3.1
are that:
|
|
|
(a)
|
the
Expected Drawdown Date and Actual Drawdown Date must be a Business Day
during the applicable Availability Period;
|
|
|
(b)
|
in
respect of the Tranche B Loan:
|
|
|
(i)
|
there
shall be no more than two Advances in respect of each Additional Ship to
finance (A) any deposit of up to 10% of the purchase price stated in the
relevant Additional Ship MOA and (B) the balance of such purchase price
remaining due after deduction of any amount advanced to pay the deposit;
and
|
|
|
(ii)
|
the
aggregate outstanding principal amount of the Tranche A Loan and the
Tranche B Loan (on a pro forma basis after giving effect to the proposed
Advance in respect of the Tranche B Loan) shall not exceed 60% of the
aggregate Fair Market Value of the Ships;
|
|
|
(c)
|
the
outstanding principal amount of each Tranche of the Loan shall not exceed
the amounts stated in Clause 2.1 for such Tranche (or the Commitments in
respect of such Tranche);
|
|
|
(d)
|
each
Advance shall be in an amount of not less than $1,000,000 and there shall
be nor more than eight (8) Advances outstanding at any time;
and
|
|
|
(e)
|
the
applicable conditions precedent stated in Clause 8 hereof shall have been
satisfied or waived as provided therein.
|
|
|
3.3
|
Drawdown Notice
irrevocable. A Drawdown Notice must be signed by an
officer or duly authorized attorney-in-fact of the Borrower; and once
served, a Drawdown Notice cannot be revoked without the prior consent of
the Agent, acting with the authority of the Majority
Lenders.
|
|
|
3.4
|
Disbursement of an
Advance. Subject to the provisions of this
Agreement:
|
|
|
(a)
|
Each
Lender shall before 11:00 a.m. (New York City time) make its Ratable
Portion of each Advance available to the Agent, for the account of the
Borrower, on and with the value date of the Expected Drawdown Date for
such Advance. After the Agent’s receipt of such funds and upon
fulfillment or waiver of the applicable conditions set forth in Clause 8
hereof, the Agent will make such funds available to the Borrower by paying
such funds to such account(s) which the Borrower specifies in the Drawdown
Notice. The payment by the Agent under this Clause 3.4 to such
account(s) shall constitute the making of an Advance to the Borrower and
the Borrower shall thereupon become indebted to each Lender in an amount
equal to such Lender’s Ratable Portion of each
Advance.
|
|
|
(b)
|
Unless
the Agent shall have received notice from a Lender prior to the relevant
Expected Drawdown Date that such Lender will not make available to the
Agent such Lender’s Ratable Portion of an Advance, the Agent may assume,
or at its option request confirmation from such Lender, that such Lender
has made its Ratable Portion available to the Agent on such date in
accordance with subsection (a) of this Clause 3.4 and the Agent may in its
sole discretion, in reliance upon such assumption or confirmation (as the
case may be), make available to the Borrower (by paying such funds to such
account(s) which the Borrower specifies in the Drawdown Notice) on such
date a corresponding amount. If and to the extent that such
Lender shall not have so made such Ratable Portion available to the Agent,
such Lender and the Borrower (but without duplication) severally agree to
repay to the Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is made
available to the Borrower by the Agent until the date such amount is
repaid to the Agent, at the LIBOR rate for overnight or weekend
deposits. If such Lender shall pay to the Agent such
corresponding amount, such amount so paid shall constitute such Lender’s
Ratable Portion of such Advance for purposes of this
Agreement. Nothing in this Clause 3.4(b) shall be deemed to
relieve any Lender of its obligation to make Advances to the extent
provided in this Agreement.
|
|
(c)
|
In
the event that the Borrower is required to repay all or a portion of an
Advance pursuant to Clause 3.4(b), as between the Borrower and the
defaulting Lender, the liability for any breakage costs as described in
Clause 16.2 shall be borne by the defaulting Lender, provided that if the
defaulting Lender has not paid any such breakage costs upon demand by the
Agent therefor, the Borrower shall pay such breakage costs upon demand by
the Agent and the Borrower shall be entitled to recover from the
defaulting Lender any such payment for breakage costs made by the
Borrower.
|
|
3.5
|
Notation of Advances on
Notes. Each Advance of a Tranche made by the Lenders to
the Borrower may be evidenced by a notation of the same made by the Agent
on the grid attached to the relevant Note, which notation, absent manifest
error, shall be prima
facie evidence of the amount of the relevant
Advance.
|
|
4
|
INTEREST
|
|
4.1
|
Normal rate of
interest. Subject to the provisions of this Agreement,
the rate of interest on each Advance of a Tranche in respect of an
Interest Period shall be the aggregate of LIBOR and the applicable Margin
for that Interest Period.
|
|
4.2
|
Payment of normal
interest. Subject to the provisions of this Agreement,
interest on each Advance of a Tranche or any part thereof in respect of
each Interest Period shall be paid by the Borrower on the last day of that
Interest Period.
|
|
4.3
|
Payment of accrued
interest. In the case of an Interest Period longer than
three (3) months, accrued interest shall be paid in arrears on the last
day of every three (3) month period during that Interest Period and on the
last day of that Interest Period.
|
|
4.4
|
Notification of interest
rate. The Agent shall notify the Borrower and each
Lender of the rate of interest as soon as it is
determined.
|
|
4.5
|
Notification of market
disruption. The Agent shall promptly notify the Borrower
if:
|
|
(a)
|
it
is unable to determine LIBOR;
|
|
(b)
|
at
least one (1) Business Day before the start of an Interest Period, Lenders
having Commitments amounting to more than 50% of the Total Commitments
notify the Agent that LIBOR fixed by the Agent would not accurately
reflect the cost to those Lenders of funding their respective Ratable
Portion (or any part of them) during the Interest Period in the London
Interbank Market at or about 11:00 a.m. (London time) on the Quotation
Date for the Interest Period; or
|
|
(c)
|
if
for any reason a Lender (the “Affected Lender”) is
unable to obtain Dollars in the London Interbank Market in order to fund
all or any part of its Ratable Portion of an Advance or Advances during
any Interest Period,
|
|
stating
the circumstances which have caused such notice to be
given.
|
|
|
4.6
|
Suspension of
drawdown. If the Agent’s notice under Clause 4.5 is
served before an Advance is made, then while the circumstances referred to
in the Agent’s notice continue:
|
|
(a)
|
in
the case of Clause 4.5(a) or (b), each Lender’s obligation to make its
Ratable Portion of such Advance; and
|
|
(b)
|
in
the case of Clause 4.5(c), the Affected Lender’s obligation to make its
Ratable Portion of such Advance,
|
|
shall
be suspended while the circumstances referred to in the Agent’s notice
continue.
|
|
|
4.7
|
Negotiation of alternative rate
of interest. If the Agent’s notice under Clause 4.5 is
served after an Advance is made, the Borrower, the Agent and the Lenders
or (as the case may be) the Affected Lender shall use reasonable endeavors
to agree, within the 30 days after the date on which the Agent serves its
notice under Clause 4.5 (the “Negotiation Period”), an
alternative interest rate or (as the case may be) an alternative basis for
each Lender or (as the case may be) the Affected Lender to fund or
continue to fund their Ratable Portion of the relevant Advance or Advances
during the Interest Period concerned.
|
|
4.8
|
Application of agreed
alternative rate of interest. Any alternative interest
rate or an alternative basis which is agreed during the Negotiation Period
shall take effect in accordance with the terms agreed.
|
|
4.9
|
Alternative rate of interest in
absence of agreement. If an alternative interest rate or
alternative basis is not agreed within the Negotiation Period, and the
relevant circumstances are continuing at the end of the Negotiation
Period, then the Agent shall set an interest period and interest rate
representing the cost of funding of the Lenders or (as the case may be)
the Affected Lender in Dollars or in any available currency of their or
its Ratable Portion of the relevant Advance or Advances plus the
applicable Margin; and the procedure provided for by this Clause 4.9 shall
be repeated if the relevant circumstances are continuing at the end of the
interest period so set by the Agent.
|
|
4.10
|
Notice of
prepayment. If the Borrower does not agree with an
interest rate set by the Agent under Clause 4.9, the Borrower may give the
Agent not less than five (5) Business Days’ notice of their intention to
prepay (without premium or penalty) the relevant Advance or Advances at
the end of the interest period set by the
Agent.
|
|
4.11
|
Prepayment. A
notice under Clause 4.10 shall be irrevocable. The Agent shall
promptly notify the Lenders or (as the case may be) the Affected Lender of
the Borrower’s notice of intended prepayment and:
|
|
(a)
|
on
the date on which the Agent so notifies the Lenders or (as the case may
be) the Affected Lender, the Total Commitments or (as the case may be) the
Commitment of the Affected Lender shall be cancelled;
and
|
|
(b)
|
on
the last Business Day of the interest period set by the Agent, the
Borrower shall prepay (without premium or penalty) the Loan or (as the
case may be) the Affected Lender’s Ratable Portion, together with accrued
interest thereon at the applicable rate plus the
Margin.
|
|
4.12
|
Application of
prepayment. The relevant provisions of Clause 7.5 shall
apply in relation to the prepayment.
|
|
4.13
|
Designated
Transactions. The Borrower may enter into Designated
Transactions with the Swap Bank in an aggregate notional principal amount
of up to or equal to the aggregate principal amount of the Loan
outstanding from time to time on such terms as the Swap Bank and the
Borrower shall agree. The Borrower hereby agrees and undertakes
throughout the Security Period not to conclude Designated Transactions
which would result, at any time during the Security Period, in the
notional principal amount of all Designated Transactions then remaining
exceeding the amount of the Loan, as reduced from time to time pursuant to
Clause 7.
|
|
5
|
INTEREST
PERIODS
|
|
5.1
|
Duration of normal Interest
Periods. Subject to Clauses 5.2, 5.3 and 5.4, each
Interest Period shall be:
|
|
(a)
|
1,
2, 3 or 6 months, as notified by the Borrower to the Agent not later than
11:00 a.m. (New York time) five (5) Business Days before the commencement
of the Interest Period (provided that for any
Interest Period longer than 3 months, interest shall be paid as required
by Clause 4.3); or
|
|
(b)
|
3
months, if the Borrower fails to notify the Agent by the time specified in
paragraph (a) above; or
|
|
(c)
|
such
other period as the Majority Lenders may agree with the
Borrower.
|
|
5.2
|
Duration of Interest Periods
overrunning Repayment Date. If the Borrower has selected
an Interest Period which would overrun a Repayment Date or Repayment
Dates, then:
|
|
(a)
|
in
the case of the final Repayment Date, the Interest Period shall end on the
final Repayment Date; and
|
|
(b)
|
in
the case of any other Repayment Date, the Loan shall be divided so
that:
|
|
(i)
|
the
amount of each repayment installment (or, as the case may be, the
aggregate amount of installments payable on the same date pursuant to the
relevant provisions of Clause 7) falling due before the end of the
Interest Period selected shall have an Interest Period ending on the
Repayment Date on which it falls (or, as the case may be, they fall) due;
and
|
|
|
(ii)
|
the
balance of the Loan from time to time outstanding during such Interest
Period shall have an Interest Period ascertained in accordance with the
provisions of Clause 5.1;
|
|
|
and
for this purpose alone may there be Interest Periods of different lengths
in relation to the Loan.
|
||
|
5.3
|
Duration of first Interest
Period; Consolidation of Interest Periods.
|
|
|
(a)
|
The
first Interest Period of all Advances made on the Closing Date shall
commence on the Closing Date and shall expire on November 1,
2007.
|
|
|
(b)
|
The first Interest Period of any
Advance made on any date other than the Closing Date (a “Subsequent
Advance”) but prior
to November 1, 2007 shall commence on the Actual Drawdown Date of such
Subsequent Advance and shall expire on November 1,
2007.
|
|
|
(c)
|
The
Interest Period for each Advance outstanding on or after November 1, 2007
shall commence on the expiry of the preceding Interest Period applicable
to such Advance and end on the last day of the Interest Period selected for each Advance by the
Borrower pursuant to the provisions of Clause
5.1.
|
|
|
5.4
|
Non-availability of matching
deposits for Interest Period selected. If, after the
Borrower has selected and the Lenders have agreed an Interest Period
longer than 3 months, any Lender notifies the Agent by 11:00 a.m. (New
York time) on the second Business Day before the commencement of that
Interest Period that it is not satisfied that deposits in Dollars for a
period equal to that Interest Period will be available to it in the London
Interbank Market when that Interest Period commences, that Interest Period
shall be of 3 months.
|
|
|
6
|
DEFAULT
INTEREST
|
|
|
6.1
|
Payment of default interest on
overdue amounts. The Borrower shall pay interest in
accordance with the following provisions of this Clause 6 on any amount
payable by the Borrower under any Finance Document which a Credit Party or
a designated payee of such Credit Party does not receive on or before the
relevant date, that is:
|
|
|
(a)
|
the
date on which a Finance Document provides that such amount is due for
payment;
|
|
|
(b)
|
if
a Finance Document provides that such amount is payable on demand, the
date on which the demand is served; or
|
|
|
(c)
|
if
such amount has become immediately due and payable under Clause 14.2, the
date on which it became immediately due and
payable.
|
|
|
6.2
|
Rate of default
interest. Interest shall accrue on an overdue amount
from (and including) the relevant date until the date of actual payment
(as well after as before judgment) at the rate per annum determined by the
Agent to be 2 percent plus the Margin plus LlBOR for a period of 1 month
(determined by the Agent on the first Business Day of each calendar
month).
|
|
6.3
|
Notification of rates of
default interest. The Agent shall promptly notify the
Borrower of each interest rate determined by the Agent under Clause 6.2;
but this shall not be taken to imply that the Borrower is liable to pay
such interest only with effect from the date of the Agent’s
notification.
|
|
6.4
|
Payment of accrued default
interest. Subject to the other provisions of this
Agreement, any interest due under this Clause shall be paid on
demand.
|
|
6.5
|
Compounding of default
interest. Any such interest which is not paid on the
date on which it is due for payment shall thereupon be compounded
daily.
|
|
6.6
|
Application to Master
Agreement. For the avoidance of doubt, this Clause 6
does not apply to any amount payable under the Master Agreement in respect
of any continuing Designated Transaction as to which Section 2(e) (Default
Interest; Other Amounts) of that Master Agreement shall
apply.
|
|
7
|
REDUCTION,
REPAYMENT, PREPAYMENT AND CANCELLATION
|
|
7.1
|
Reduction
of Tranche A Loan Commitments.
|
|
(a)
|
The
Commitments in respect of the Tranche A Loan shall be reduced by 16 semi-annual reductions,
as follows:
|
|
Reduction #
|
Date
|
Amount
|
Outstanding
|
|
$200,000,000
|
|||
|
1
|
1-Apr-08
|
$8,500,000
|
$191,500,000
|
|
2
|
1-Oct-08
|
$8,500,000
|
$183,000,000
|
|
3
|
1-Apr-09
|
$11,000,000
|
$172,000,000
|
|
4
|
1-Oct-09
|
$11,000,000
|
$161,000,000
|
|
5
|
1-Apr-10
|
$11,000,000
|
$150,000,000
|
|
6
|
1-Oct-10
|
$11,000,000
|
$139,000,000
|
|
7
|
1-Apr-11
|
$11,000,000
|
$128,000,000
|
|
8
|
1-Oct-11
|
$11,000,000
|
$117,000,000
|
|
9
|
1-Apr-12
|
$11,000,000
|
$106,000,000
|
|
10
|
1-Oct-12
|
$11,000,000
|
$95,000,000
|
|
11
|
1-Apr-13
|
$11,000,000
|
$84,000,000
|
|
12
|
1-Oct-13
|
$11,000,000
|
$73,000,000
|
|
13
|
1-Apr-14
|
$11,000,000
|
$62,000,000
|
|
14
|
1-Oct-14
|
$11,000,000
|
$51,000,000
|
|
15
|
1-Apr-15
|
$11,000,000
|
$40,000,000
|
|
16
|
1-Oct-15
|
$40,000,000
|
$0
|
|
(b)
|
Each
reduction in the Commitments in respect of the Tranche A Loan pursuant to
this Clause 7.1 shall cause the amount of such Commitments to be
permanently reduced by the amount of the reduction.
|
|
(c)
|
The
Borrower shall ensure that at all times the aggregate outstanding amount
of the Advances in respect of the Tranche A Loan is not greater than the
then applicable Commitments in respect of the Tranche A Loan and, without
prejudice to the generality of the foregoing, the Borrower shall if
necessary prepay some or all of the outstanding Advances in respect of the
Tranche A Loan so that the aggregate outstanding amount of such Advances
does not (taking into account the scheduled reduction of the Commitments
in respect of the Tranche A Loan) exceed the Commitments in respect of the
Tranche A Loan as reducing from time to time thereafter pursuant to this
Clause 7.1. For the avoidance of doubt, any amounts prepaid
pursuant to this Clause 7.1(c) may not be reborrowed.
|
|
7.2
|
Repayment of Tranche A
Loan.
|
|
(a)
|
The
Borrower shall repay each Advance of the Tranche A Loan to the Agent for
the account of the Lenders on the last day of the Interest Period in
respect of such Advance unless the Borrower selects a further Interest
Period for such Advance in accordance with Clause 5; provided that the
Borrower shall not be permitted to select such a further Interest Period
if an Event of Default has occurred and is continuing.
|
|
(b)
|
The
Borrower shall repay all outstanding Advances in respect of the Tranche A
Loan on the Maturity Date.
|
|
7.3
|
Repayment of Tranche B
Loan.
|
|
(a)
|
The
Borrower shall repay the Tranche B Loan in 15 semi-annual installments, as
follows:
|
|
Repayment #
|
Date
|
Amount
|
Outstanding
|
|
$125,000,000
|
|||
|
1
|
1-Jan-09
|
$6,944,444
|
$118,055,556
|
|
2
|
1-Jul-09
|
$6,944,444
|
$111,111,111
|
|
3
|
1-Jan-10
|
$6,944,444
|
$104,166,667
|
|
4
|
1-Jul-10
|
$6,944,444
|
$97,222,222
|
|
5
|
1-Jan-11
|
$6,944,444
|
$90,277,778
|
|
6
|
1-Jul-11
|
$6,944,444
|
$83,333,333
|
|
7
|
1-Jan-12
|
$6,944,444
|
$76,388,889
|
|
8
|
1-Jul-12
|
$6,944,444
|
$69,444,444
|
|
9
|
1-Jan-13
|
$6,944,444
|
$62,500,000
|
|
10
|
1-Jul-13
|
$6,944,444
|
$55,555,556
|
|
11
|
1-Jan-14
|
$6,944,444
|
$48,611,111
|
|
12
|
1-Jul-14
|
$6,944,444
|
$41,666,667
|
|
13
|
1-Jan-15
|
$6,944,444
|
$34,722,222
|
|
14
|
1-Jul-15
|
$6,944,444
|
$27,777,778
|
|
15
|
1-Oct-15
|
$27,777,778
|
$0
|
|
(b)
|
Each
repayment installment pursuant to this Clause 7.3 shall cause the amount
of the Commitments in respect of the Tranche B Loan to be permanently
reduced by the amount of such repayment installment.
|
|
|
7.4
|
Repayment of additional amounts
on Maturity Date. On the Maturity Date, the Borrower
shall additionally pay to the Agent for the account of the Credit Parties
all other sums then accrued or owing under any Finance
Document.
|
|
|
7.5
|
Voluntary
prepayment. Subject to the conditions stated in Clause
7.6, the Borrower may prepay the whole or any part of either Tranche of
the Loan on the last day of an Interest Period. Any partial
prepayment under this Clause 7.5 shall be applied to the prepayment on a
pro rata basis of
the outstanding Advances of the Tranche(s) designated by the Borrower in a
notice of prepayment to be prepaid and, in the case of the Tranche B Loan,
the remaining repayment installments due thereunder shall be recalculated
by the Agent and promptly advised to the Borrower.
|
|
|
7.6
|
Conditions for voluntary
prepayment. The conditions referred to in Clause 7.5 are
that:
|
|
|
(a)
|
a
partial prepayment shall be $1,000,000 or a higher integral multiple
thereof;
|
|
|
(b)
|
the
Agent has received from the Borrower at least five (5) Business Days’
prior written notice specifying the amount to be prepaid and the date on
which the prepayment is to be made; and
|
|
|
(c)
|
the
Borrower has provided evidence satisfactory to the Agent that any consent
required by the Borrower in connection with the prepayment has been
obtained and remains in force, and that any regulation relevant to this
Agreement which affects the Borrower has been complied with (which may be
satisfied by the Borrower certifying that no consents are required and
that no regulations need to be complied with).
|
|
|
7.7
|
Effect of notice of
prepayment. A prepayment notice may not be withdrawn or
amended without the consent of the Agent, acting with the consent of the
Majority Lenders, and the amount specified in the prepayment notice shall
become due and payable by the Borrower on the date for prepayment
specified in the prepayment notice.
|
|
|
7.8
|
Notification to Lenders of
notice of prepayment. The Agent shall notify the Lenders
promptly upon receiving a prepayment notice, and shall provide any Lender
which so requests with a copy of any document delivered by the Borrower
under Clause 7.6(c).
|
|
|
7.9
|
Mandatory Commitment reduction
and prepayment on sale or Total Loss.
|
|
|
(a)
|
If
a Ship is sold or becomes a Total Loss, then except as provided in Clause
7.9(b), the then applicable Total Commitments shall be reduced by an
amount (the “Mandatory
Commitment Reduction Amount”) equal to such Total Commitments
multiplied by the Mandatory Prepayment Ratio. The Mandatory
Commitment Reduction Amount shall then be applied on a pro rata basis to each
Tranche of the Loan to permanently reduce the Total Commitments in respect
of each such Tranche and:
|
|
|
(i)
|
with
respect to the Tranche A Loan, the amount of the remaining scheduled
semi-annual Commitment reductions under Clause 7.1 shall be permanently
reduced on a pro
rata basis; and
|
|
|
(ii)
|
the
Borrower shall prepay such amount of the Advances in respect of each
Tranche of the Loan which exceeds the amount of the reduced Total
Commitments of such Tranche.
|
|
|
The
Borrower shall make any mandatory prepayment that is due under this Clause
7.9(a):
|
||
|
(1)
|
in
the case of a sale, on or before the date on which the sale is completed
by delivery of the Ship to the buyer; or
|
|
|
(2)
|
the
case of a Total Loss, on the earlier of the date falling 120 days after
the Total Loss Date and the date of receipt by the Security Trustee of the
proceeds of insurance relating to such Total Loss.
|
|
|
Any
prepayment under Clause 7.9(a)(ii) shall be applied to the prepayment on a
pro rata basis of
the outstanding Advances of the Tranche(s) requiring prepayment and, in
the case of the Tranche B Loan, the remaining repayment installments due
thereunder shall be recalculated by the Agent and promptly advised to the
Borrower.
|
||
|
(b)
|
Notwithstanding
the provisions of Clause 7.9(a), if a Ship is sold or becomes a Total Loss
the Borrower may elect to cause the sale proceeds or insurance proceeds
(as the case may be) to be deposited with and held by the Security Trustee
in its sole control as Collateral for the Secured
Liabilities:
|
|
|
(i)
|
in
the case of a sale, on the date on which the sale is completed by delivery
of such Ship to the buyer; or
|
|
|
(ii)
|
the
case of a Total Loss, on the earlier of the date falling 120 days after
the Total Loss Date and the date of receipt by the Security Trustee of the
proceeds of insurance relating to such Total Loss.
|
|
|
The
Borrower hereby pledges, assigns, transfers and sets over unto the
Security Trustee absolutely, for and on behalf of the Lenders and the Swap
Bank, and hereby grants to the Security Trustee a continuing, first
priority security interest in and to all of the Borrowers’ right, title
and interest under, in and to such sale proceeds or insurance proceeds (as
the case may be).
|
||
|
If
within 90 days after the date on which the sale of the relevant Ship is
completed or 180 days after the Total Loss Date (as the case may be) the
Borrower or a Replacement Ship Owner (as the case may be) (i) purchases a
vessel (a “Replacement
Ship”) that, in the reasonable discretion of the Majority Lenders,
is of the same or better type, age, quality and condition as the Ship that
was lost or sold and (ii) executes (or causes the execution of) such
Finance Documents in respect of such Replacement Ship and Replacement Ship
Owner (including, without limitation, a Share Pledge in respect of the
capital stock of such Replacement Ship Owner) as the Agent may request,
then the Security Trustee, upon the written request of the Borrower, shall
release such sale proceeds or insurance proceeds (as the case may be) held
by it to the Borrower and no Commitment reduction or prepayment shall be
required under Clause 7.9(a) in respect of the Tranche A Loan or, during
the period between the Closing Date and the fifth (5th) Business Day
preceding the third anniversary thereof, the Tranche B
Loan.
|
||
|
If,
however, the Borrower or a Replacement Ship Owner (as the case may be)
does not purchase a Replacement Ship within 90 days after the date on
which the sale of the relevant Ship is completed or 180 days after the
Total Loss Date (as the case may be), then the sale proceeds or insurance
proceeds (as the case may be) deposited with and held by the Security
Trustee shall be applied by the Security Trustee and the Total Commitments
shall be reduced as required under Clause 7.9(a).
|
|
|
7.10
|
Amounts payable on
prepayment. A prepayment shall be made together with
accrued interest (and any other amount payable under Clause 16.1 below or
otherwise) in respect of the amount prepaid and, if the prepayment is not
made on the last day of an Interest Period, together with any sums payable
under Clause 16.2, but without premium or penalty.
|
|
7.11.
|
Reborrowing. Subject
to the terms of this Agreement, any amount repaid or
prepaid:
|
|
(a)
|
in
respect of the Tranche A Loan may be reborrowed during the Availability
Period applicable to the Tranche A Loan; and
|
|
(b)
|
in
respect of the Tranche B Loan may not be reborrowed.
|
|
7.12
|
Voluntary cancellation of
Commitments. Subject to the conditions stated in Clause
7.13, the Borrower may cancel the whole or any part of the Total
Commitments in respect of either Tranche of the Loan at any time and
without penalty.
|
|
7.13
|
Conditions for cancellation of
Commitments. The conditions referred to in Clause 7.12
are that:
|
|
(a)
|
a
partial cancellation shall be $5,000,000 or a higher integral multiple of
$1,000,000; and
|
|
(b)
|
the
Agent has received from the Borrower at least three (3) Business Days’
prior written notice specifying the amount (and the Tranche) of the Total
Commitments to be cancelled and the date on which the cancellation is to
take effect.
|
|
7.14
|
Effect of notice of
cancellation. A cancellation notice may not be withdrawn
or amended without the consent of the Agent, acting with the consent of
the Majority Lenders, and shall cause the amount of the Total Commitments
specified in the notice to be permanently cancelled. Any
partial cancellation shall be applied against the Commitment of each
Lender pro rata
(and also, in respect of the Tranche A Loan, on a pro rata basis against
the future reductions of the Total Commitments pursuant to Clause
7.1).
|
|
7.15
|
Notification to Lenders of
notice of cancellation. The Agent shall notify the
Lenders promptly upon receiving a cancellation notice.
|
|
7.16
|
Unwinding of Designated
Transactions. On or prior to any repayment or prepayment
under this Clause 7, Clause 10.3 or any other provision of this Agreement,
the Borrower shall wholly or partially reverse, offset, unwind or
otherwise terminate one or more of the continuing Designated Transactions
to the extent necessary to ensure that the aggregate notional principal
amount of the continuing Designated Transactions thereafter remaining does
not and will not in the future (taking into account the scheduled
amortization thereof) exceed the aggregate amount of the Loan scheduled to
be outstanding from time to time
hereunder.
|
|
7.17
|
Repayment of Swap
Benefit. If a Designated Transaction is terminated in
circumstances where the Swap Bank would be obliged to pay an amount to the
Borrower under the Master Agreement, the Borrower hereby agrees that such
payment shall be applied in prepayment of the Loan under Clause 7.5 and
authorizes Swap Bank to pay such amount to the Agent for such
purpose.
|
|
|
8
|
CONDITIONS
PRECEDENT TO THE ADVANCES
|
|
|
8.1
|
Documents, fees and no
default. Each Lender’s obligation to make its Ratable
Portion of an Advance is subject to the following conditions
precedent:
|
|
|
(a)
|
that
on or before the service of the first Drawdown Notice, the Agent shall
have received:
|
|
|
(i)
|
the
documents described in Part A of Schedule 3 in form and substance
satisfactory to the Agent and its lawyers;
|
|
|
(ii)
|
such
documentation and other evidence as is reasonably requested by the Agent
or a Lender in order for each Lender to carry out and be satisfied with
the results of all necessary “know your customer” or other checks which it
is required to carry out in relation to the transactions contemplated by
this Agreement and the other Finance Documents, including without
limitation obtaining, verifying and recording certain information and
documentation that will allow the Agent and each of the Lenders to
identify each of the Borrower and the Guarantors in accordance with the
requirements of the USA PATRIOT Act (Title III of Pub.: 107-56 (signed
into law October 26, 2001)) (the “PATRIOT Act”);
and
|
|
|
(iii)
|
payment
of all accrued commitment fees and all other fees and expenses referred to
in Clause 15 that are payable at that time;
|
|
|
(b)
|
that
on or before an Expected Drawdown Date in respect of an Advance of the
Tranche A Loan, the Agent shall have received the documents described in
Part B of Schedule 3 in form and substance satisfactory to the Agent and
its lawyers;
|
|
|
(c)
|
that
on or before an Expected Drawdown Date in respect of an Advance of the
Tranche B Loan, the Agent shall have received the documents described in
Part C of Schedule 3 in form and substance satisfactory to the Agent and
its lawyers;
|
|
|
(d)
|
that
at the date of a Drawdown Notice, at an Expected Drawdown Date and at an
Actual Drawdown Date:
|
|
|
(i)
|
no
Event of Default or Potential Event of Default has occurred and is
continuing or would result from the borrowing of the Loan or any part
thereof;
|
|
|
(ii)
|
the
representations and warranties in Clause 9 and those of any Obligor which
are set out in the other Finance Documents would be true and not
misleading if repeated on each of those dates with reference to the
circumstances then existing; and
|
|
|
(iii)
|
there
has been no material adverse change in the financial condition, operations
or business prospects of any of the Obligors since the date on the
Obligors provided information concerning those topics to the Agent and/or
any Lender; and
|
|
|
(iv)
|
none
of the circumstances contemplated by Clause 4.5 has occurred and is
continuing;
|
|
|
(e)
|
that,
if the Collateral Maintenance Ratio were applied immediately following the
making of such Advance, the Borrower would not be obliged to provide
additional Collateral or prepay part of the Loan (and if the Borrower
would be so obliged the amount of the Advance shall be correspondingly
reduced); and
|
|
|
(f)
|
that
the Agent shall have received, and found to be acceptable to it, any
further opinions, consents, agreements and documents in connection with
the Finance Documents which the Agent may reasonably request by notice to
the Borrower prior to the relevant Expected Drawdown
Date.
|
|
|
8.2
|
Waiver of conditions
precedent. Notwithstanding anything in Clause 8.1 to the
contrary:
|
|
|
(a)
|
except
with respect to the circumstances described in Clause 8.2(b), if the
Agent, with the consent of the Majority Lenders, permits an Advance to be
borrowed before certain of the conditions referred to in Clause 8.1 are
satisfied, the Borrower shall ensure that such conditions are satisfied
within ten (10) Business Days after such Actual Drawdown Date (or such
longer period as the Agent may specify); and
|
|
|
(b)
|
only
if required under the terms of the applicable Additional Ship MOA or
another contract for the acquisition of an Additional Ship, an Advance may
be borrowed before the applicable conditions set forth in Clause 8.1 are
satisfied and:
|
|
|
(i)
|
each
Lender agrees to fund its Ratable Portion of the relevant Advance on a day
not more than five (5) Business Days prior to the date of the scheduled
acquisition and delivery of such Ship (such date, the “Delivery Date”);
and
|
|
|
(ii)
|
the
Agent shall on the date on which such Advance is funded (or as soon
thereafter as practicable) (A) preposition an amount equal to the
aggregate principal amount of the Advance at a bank or other financial
institution (the “Seller’s Bank”)
satisfactory to the Agent, which funds shall be held at the Seller’s Bank
in the name and under the sole control of the Agent or one of its
Affiliates and (B) issue a Swift MT 199 or other similar communication
(each such communication, a “Disbursement
Authorization”) authorizing the release of such funds by the
Seller’s Bank on the relevant Delivery Date upon receipt of a Protocol of
Delivery and Acceptance in respect of such Ship duly executed by the
relevant Seller and the relevant Additional Ship Owner (as the case may
be) and countersigned by a representative of the Agent;
|
|
|
provided that if
delivery of the relevant Ship does not occur within five (5) Business Days
after the relevant scheduled Delivery Date, the funds held at the Seller’s
Bank shall be returned to the Agent for further distribution to the
Lenders.
|
||
|
For
the avoidance of doubt, the parties hereto acknowledge and agree
that:
|
||
|
(1)
|
the
date on which the Lenders fund the Advance constitutes the Actual Drawdown
Date in respect of such Advance and all interest and fees thereon shall
accrue from such date;
|
|
|
(2)
|
the
Agent and the Lenders suspend fulfillment of the conditions precedent set
forth in Schedule 3, Part B, Paragraphs 5(a) and 6(a) and (b), and
Schedule 3, Part C, Paragraphs 5(a) and 6(a) and (b), as the case may be,
solely for the time period on and between such Actual Drawdown Date and
the relevant Delivery Date, and the Obligors acknowledge and agree that
fulfillment of such conditions precedent to the satisfaction of the Agent
shall be required as a condition precedent to the countersignature by a
representative of the Agent of the Protocol of Delivery and Acceptance
referred to in Clause 8.2(b)(ii);
|
|
|
(3)
|
from
the date the Advance is deposited at the Seller’s Bank to the Delivery
Date (or, if delivery of the Ship does not occur within the time
prescribed in the Disbursement Authorization, the date on which the funds
are returned to the Agent for further distribution to the Lenders), the
Borrower shall be entitled to interest on the Advance at the applicable
rate, if any, paid by the Seller’s Bank for such deposited
funds;
|
|
|
(4)
|
if
the relevant Ship is not delivered within the time prescribed in the
Disbursement Authorization and the relevant Advance is returned to the
Agent and distributed to the Lenders, (i) the Borrower shall pay all
accrued interest and fees in respect of such returned Advance on the date
such Advance is returned to the agent and (ii) the relevant available
Commitment will be increased by an amount equal to the aggregate principal
amount of the Advance so returned; and
|
|
|
(5)
|
if
the Borrower has instructed the Agent to convert the aggregate principal
amount of the Advance borrowed into a currency other than Dollars for
deposit with the Seller’s Bank and the relevant Ship is not delivered
within the time prescribed in the Disbursement Authorization and the
relevant Advance is returned to the Agent for further distribution to the
Lenders, the Agent shall convert the aggregate principal amount of funds
so returned back into Dollars and if such funds are less than the Dollar
amount of the aggregate principal amount of the Advance incurred on the
relevant Actual Drawdown Date, the Borrower shall immediately repay the
difference and, in any event, the Borrower shall pay any and all fees,
charges and expenses arising from such conversion.
|
|
|
9
|
REPRESENTATIONS
AND WARRANTIES
|
|
|
9.1
|
General. Each
of the Obligors represents and warrants as follows.
|
|
|
9.2
|
Status. Each
Obligor is:
|
|
|
(a)
|
duly
incorporated and validly existing and in good standing under the law of
its jurisdiction of incorporation; and
|
|
|
(b)
|
duly
qualified and in good standing as a foreign company in each other
jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where, in
each case, the failure to so qualify or be licensed and be in good
standing could not reasonably be expected to have a material adverse
effect on its business, assets or financial condition or which may affect
the legality, validity, binding effect or enforceability of the Finance
Documents;
|
|
|
and
there are no proceedings or actions pending or contemplated by any
Obligor, or to the knowledge of the Obligors contemplated by any third
party, to dissolve, wind-up or terminate any Obligor.
|
|
|
9.3
|
Company power;
consents. Each Obligor has the capacity and has taken
all action, and no consent of any person is required,
for:
|
|
(a)
|
it
to own or lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted;
|
|
(b)
|
it
to execute each Finance Document to which it is or is to become a
party;
|
|
(c)
|
it
to comply with its respective obligations under each Finance Document to
which it is or is to become a party;
|
|
(d)
|
it
to grant the liens granted by it pursuant to the Finance Documents to
which it is a party;
|
|
(e)
|
the
perfection or maintenance of the liens created by the Finance Documents
(including the first priority nature thereof); and
|
|
(f)
|
the
exercise by any Credit Party of its rights under any of the Finance
Documents or the remedies in respect of the Collateral pursuant to the
Finance Documents to which it is a party,
|
|
except
for consents which have been duly obtained, taken, given or made and are
in full force and effect.
|
|
|
9.4
|
Consents not liable to
revocation. Nothing has occurred which makes any of the
consents referred to in Clause 9.3 liable to revocation, and each Obligor
is in compliance with all applicable laws.
|
|
9.5
|
Legal validity; effective
Security Interests. Subject to any relevant insolvency
laws affecting creditors’ rights generally:
|
|
(a)
|
each
Finance Document to which an Obligor is or is to become a party, does now
or, as the case may be, will, upon execution and delivery (and, where
applicable, registration as provided for in the Finance Documents),
constitute such Obligor’s legal, valid and binding obligations enforceable
against it in accordance with their respective terms;
and
|
|
(b)
|
the
Finance Documents to which each Obligor is a party, do now or, as the case
may be, will, upon execution and delivery (and, where applicable,
registration as provided for in the Finance Documents) create legal, valid
and binding Security Interests enforceable in accordance with their
respective terms over all the assets to which they, by their terms,
relate.
|
|
9.6
|
No conflicts; no
liens. The execution by each Obligor of each Finance
Document to which it is or is to become a party, the compliance by each
Obligor with its obligations under such Finance Document to which it is or
is to become a party, and the borrowing by the Borrower of the Loan, will
not:
|
|
(a)
|
involve
or lead to a contravention of (i) any law or regulation or order, writ,
judgment, injunction, decree, determination or award applicable to such
Obligor; (ii) the constitutional documents of such Obligor; or (iii) any
contractual or other obligation or restriction which is binding on such
Obligor or any of its assets; and
|
|
(b)
|
except
for liens created by the Finance Documents, result in or require the
creation or imposition of any lien upon or with respect to any of the
properties of such Obligor.
|
|
9.7
|
Taxes.
|
|
(a)
|
All
payments which an Obligor is liable to make under the Finance Documents to
which it is a party may be made without deduction or withholding for or on
account of any tax payable under any law of any Pertinent
Jurisdiction.
|
|
(b)
|
Each
Obligor has filed or has caused to be filed all tax returns and other
reports that it is required by law or regulation to file in any Pertinent
Jurisdiction, and has paid or caused to be paid all taxes, assessments and
other similar charges that are due and payable in any Pertinent
Jurisdiction, other than taxes and charges (i) which are (x) not yet
delinquent or (y) being contested in good faith by appropriate proceedings
and for which adequate reserves have been established and in a manner that
does not involve any risk of sale, forfeiture, loss, confiscation or
seizure of any of the Ships, or (ii) the non-payment of which could not
reasonably be expect to have a material adverse effect on such
Obligor. The charges, accruals, and reserves on the books of
each Obligor respecting taxes are adequate in accordance with applicable
accounting principles and practices.
|
|
(c)
|
No
material claim for any tax has been asserted against any of the Obligors
or any of their Affiliates by any Pertinent Jurisdiction or other taxing
authority other than claims that are included in the liabilities for taxes
in the most recent balance sheet of such Obligor or disclosed in the notes
thereto, if any.
|
|
(d)
|
The
execution, delivery, filing and registration or recording (if applicable)
of the Finance Documents, and the consummation of the transactions
contemplated thereby, will not cause any of the Credit Parties to be
required to make any registration with, give any notice to, obtain any
license, permit or other authorization from, or file any declaration,
return, report or other document with any governmental authority in New
York, the Republic of The Xxxxxxxx Islands or any Pertinent
Jurisdiction.
|
|
(e)
|
No
taxes are required by any governmental authority in New York, the Republic
of The Xxxxxxxx Islands or any Pertinent Jurisdiction to be paid with
respect to or in connection with the execution, delivery, filing,
recording, performance or enforcement of any Finance
Document.
|
|
(f)
|
The
execution, delivery, filing, registration, recording, performance and
enforcement of the Finance Documents by any Credit Party will not cause
such Credit Party to be deemed to be resident, domiciled or carrying on
business in the Republic of The Xxxxxxxx Islands or subject to taxation
under any law or regulation of any governmental authority in the Republic
of The Xxxxxxxx Islands.
|
|
(g)
|
Other
than the recording of each Mortgage in accordance with the laws of the
relevant Approved Flag State and the filing of Uniform Commercial Code
Financing Statements in Washington, D.C. and the Secretary of State of the
State of New York in respect of certain of the Finance Documents, and fees
consequent thereto, it is not necessary for the legality, validity,
enforceability or admissibility into evidence of this Agreement or any
other Finance Document that any of them or any document relating thereto
be registered, filed recorded or enrolled with any court or authority in
any relevant jurisdiction or that any stamp, registration or similar taxes
be paid on or in relation to this Agreement or any of the other Finance
Documents.
|
|
9.8
|
No
default. No Event of Default or Potential Event of
Default has occurred and is continuing and there are no incipient or other
defaults under any other agreements of any Obligor.
|
|
9.9
|
Information. All
financial statements, information and other data furnished by or on behalf
of each Obligor to any of the Credit Parties:
|
|
(a)
|
was
true and accurate at the time it was given;
|
|
(b)
|
such
financial statements have been prepared in accordance with GAAP and
accurately and fairly represent the financial condition of such Obligor as
of the date or respective dates thereof and the results of operations of
such Obligor for the period or respective periods covered by such
financial statements;
|
|
(c)
|
there
are no other facts or matters the omission of which would have made or
make any such information false or misleading;
|
|
(d)
|
there
has been no material adverse change in the financial condition, operations
or business prospects of any of the Obligors since the date on which such
information was provided other than as previously disclosed to the Agent
in writing; and
|
|
(e)
|
none
of the Obligors has any contingent obligations, liabilities for taxes or
other outstanding financial obligations which are material in the
aggregate except as disclosed in such statements, information and
data.
|
|
9.10
|
No
litigation. No legal or administrative action involving
any Obligor (including any action relating to any alleged or actual breach
of the ISM Code or ISPS Code or any Environmental Law) has been commenced
or taken or, to any Obligor’s knowledge, is likely to be commenced or
taken which, in either case, would be likely to have a material adverse
effect on the business, assets or financial condition of any Obligor or
which may affect the legality, validity, binding effect or enforceability
of the Finance Documents.
|
|
9.11
|
ISM Code and ISPS Code
compliance. Each of the Obligors has obtained or will
obtain or will cause to be obtained all necessary ISM Code Documentation
and ISPS Code Documentation in connection with its Ship and its operation
and will be or will cause each Ship and the Approved Manager (technical)
to be in full compliance with the ISM Code and the ISPS
Code.
|
|
9.12
|
Validity and completeness of
Additional Ship MOAs.
|
|
(a)
|
Each
Additional Ship MOA has been (or will be) delivered to the Agent and is
(or will be) a true and complete copy thereof, together with all
agreements, instruments and other documents delivered in connection
therewith and amendments thereto.
|
|
(b)
|
Each
Additional Ship MOA constitutes (or will upon execution thereof
constitute) valid, binding and enforceable obligations of the parties
thereto in accordance with its terms.
|
|
(c)
|
No amendments or additions to an
Additional Ship MOA have been or will be agreed and
the parties thereto have not waived (and will not waive) any of their
respective rights.
|
|
(d)
|
There
is no default on the part of any Obligor or, to the best knowledge of the
Obligors, on the part of any Seller, with respect to an Additional Ship
MOA, and there is no accrued right of any party thereto to terminate an
Additional Ship MOA.
|
|
9.13
|
No rebates
etc. There is not nor shall there be any agreement or
understanding to allow or pay any rebate, premium, commission, discount or
other benefit or payment (howsoever described) to any Obligor, any
subsidiary or Affiliate of the Obligors, any Seller or any third party in
connection with the purchase of a Ship, other than as disclosed to the
Agent in writing.
|
|
9.14
|
Margin
Stock. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock
and no proceeds of the Loan will be used to buy or carry any Margin Stock
or to extend credit to others for the purpose of buying or carrying any
Margin Stock.
|
|
9.15
|
Compliance with law;
Environmentally Sensitive Material. Except to the extent
the following could not reasonably be expected to have a material adverse
effect on the business, assets or financial condition of any of the
Obligors or which may affect the legality, validity, binding effect or
enforceability of the Finance Documents:
|
|
(a)
|
the
operations and properties of each Obligor comply with all laws and
regulations, including without limitation Environmental Law, all necessary
Environmental Permits have been obtained and are in effect for the
operations and properties of each Obligor and each Obligor is in
compliance in all material respects with all such Environmental Permits;
and
|
|
(b)
|
none
of the Obligors has been notified in writing by any person that it or any
of its subsidiaries or Affiliates is potentially liable for the remedial
or other costs with respect to treatment, storage, disposal, release,
arrangement for disposal or transportation of any Environmentally
Sensitive Material, except for costs incurred in the ordinary course of
business with respect to treatment, storage, disposal or transportation of
such Environmentally Sensitive Material.
|
|
9.16
|
Ownership
of Intermediate Holding Companies and Guarantors.
|
|
(a)
|
All
of the outstanding capital stock of each of the Intermediate Holding
Companies has been validly issued, is fully paid, non-assessable and free
and clear of all liens, and is owned beneficially and of record by the
Borrower.
|
|
(b)
|
All
of the outstanding capital stock of each of the Guarantors has been
validly issued, is fully paid, non-assessable and free and clear of all
liens, and is owned beneficially and of record by the relevant
Intermediate Holding Company.
|
|
(c)
|
None
of the capital stock of any of the Guarantors or the Intermediate Holding
Companies is subject to any existing option, warrant, call, right,
commitment or other agreement of any character to which the any of them is
a party requiring, and there are no securities or interests of any of the
Guarantors or the Intermediate Holding Companies outstanding which upon
conversion or exchange would require, the issuance, sale or transfer of
any additional equity interests of any of the Guarantors or the
Intermediate Holding Companies or other securities convertible into,
exchangeable for or evidencing the right to subscribe for or purchase
shares of capital stock or other equity securities of any of the
Guarantors or the Intermediate Holding Companies.
|
|
9.17
|
Investment Company, Holding
Company, etc. None of the Obligors is (i) an “investment
company,” or an “affiliated person” of, or “promoter” or “principal
underwriter” for, an “investment company,” as such terms are defined in
the Investment Company Act of 1940, as amended, or (ii) a “holding
company” or a “subsidiary company” of a “holding company” or an affiliate
of a “holding company” or of a “subsidiary company” of a “holding company”
or a “public utility” within the meaning of the Public Utility Holding
Company of 1935, as amended, or (iii) a “public utility” within the
meaning of the Federal Power Act of 1920, as amended.
|
|
9.18
|
Asset
Control. None of the Obligors is a “national” of any
“designated foreign country”, within the meaning of the Foreign Assets
Control Regulations or the Cuban Asset Control Regulations of the U.S.
Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended, or a
“specially designated national” listed by the Office of Foreign Assets
Control (“OFAC”),
the U.S. Department of the Treasury, or any regulations or rulings issued
thereunder. Neither the making of the Advances nor the use of
the proceeds thereof nor the performance by the Borrower of its
obligations under any of the Finance Documents to which it is a party
violates any statute, regulation or executive order restricting loans to,
investments in, or the export of assets to, foreign countries or entities
doing business there.
|
|
9.19
|
ERISA. None
of the Obligors has ever established or maintained any employee benefit
plan subject to Title IV of the Employee Retirement Income Security Act of
1974, as amended.
|
|
9.20
|
Use of
Proceeds. The Borrower is using the proceeds of the Loan
only for the purposes stated in the recitals to this Agreement and the
Borrower’s use of the Loan does not contravenes any law, official
requirement or other regulatory measure or procedure implemented to combat
“money laundering” (as defined in Article 1 of the Directive (91/308/EEC)
of the Council of the European Communities) and comparable United States
Federal and state laws.
|
|
9.21
|
Ships. Upon
the date of the making of each Advance (other than an Advance in respect
of a deposit on an Additional Ship) and thereafter at all times during the
Security Period, each of the Ships:
|
|
(a)
|
is
or will be in the sole and absolute ownership of the relevant Guarantor
and duly registered in such Guarantor’s name under the law of an Approved
Flag State, unencumbered save and except for the Mortgage thereon in favor
of the Security Trustee recorded against it and as permitted
thereby;
|
|
(b)
|
is,
or will be, seaworthy for hull and machinery insurance warranty purposes
and in every way fit for its intended service; and
|
|
(c)
|
is,
or will be, insured in accordance with the provisions of the Mortgage
recorded against it and the requirements thereof in respect of such
insurances will have been complied with.
|
|
9.22
|
Place of
Business.
|
|
(a)
|
The
Borrower’s Chief Executive Office is located at:
|
|
00 Xxxxxxxxx
Xxxxxx
|
|
|
Xxxxxx
00000
|
|
|
Xxxxxx
|
|
|
(b)
|
Each
Guarantor’s Chief Executive Office is located at:
|
|
00 Xxxxxxxxx
Xxxxxx
|
|
|
Xxxxxx
00000
|
|
|
Xxxxxx
|
|
|
9.23
|
Solvency. In
the case of each Obligor:
|
|
(a)
|
the
sum of its assets, at a fair valuation, does and will exceed its
liabilities, including, to the extent they are reportable as such in
accordance with GAAP, contingent liabilities;
|
|
(b)
|
the
present fair market salable value of its assets is not and shall not be
less than the amount that will be required to pay its probable liability
on its then existing debts, including, to the extent they are reportable
as such in accordance with GAAP, contingent liabilities, as they
mature;
|
|
(c)
|
it
does not and will not have unreasonably small working capital with which
to continue its business; and
|
|
(d)
|
it
has not incurred, does not intend to incur and does not believe it will
incur, debts beyond its ability to pay such debts as they
mature.
|
|
9.24
|
Survival of
Representations. All representations and warranties made
by the Obligors herein or made in any certificate delivered pursuant
hereto shall survive the making of the Advances.
|
|
10
|
COVENANTS
|
|
10.1
|
Affirmative
covenants. From the Closing Date until all
Commitments have terminated and all amounts payable hereunder have been
paid in full:
|
|
(a)
|
each
Obligor shall duly observe and perform its obligations under each Finance
Document to which it is a party, and the Obligors shall promptly notify
the Agent of any significant damage or injury caused by or to a
Ship;
|
|
(b)
|
each
Obligor shall promptly inform the Agent, upon becoming aware of the same,
of the occurrence of an Event of Default or of any Potential Event of
Default or any other event (including any litigation) which might
adversely affect its ability to perform its obligations under this
Agreement and each other Finance Document to which it is a
party;
|
|
(c)
|
each
Obligor shall obtain or cause to be obtained, maintain in full force and
effect and comply with the conditions and restrictions (if any) imposed in
connection with, every consent and do all other acts and things which may
from time to time be necessary or required for the continued due
performance of all of its obligations under each Finance Document to which
it is a party, and shall deliver a copy of all such consents to the Agent
promptly upon its request;
|
|
|
(d)
|
each
Obligor shall comply in all material respects with all applicable federal,
state, local and foreign laws, ordinances, rules, orders and regulations
now in force or hereafter enacted, including, without limitation, all
Environmental Laws and regulations relating to thereto, the failure to
comply with which would be likely to have a material adverse effect on the
business, assets or financial condition of such Obligor or affect the
legality, validity, binding effect or enforceability of each Finance
Document to which such Obligor is a party;
|
|
|
(e)
|
each
Obligor shall keep proper books of record and account, in which full and
materially correct entries shall be made of all financial transactions and
the assets and business of such Obligor in accordance with GAAP, and the
Agent shall have the right to examine the books and records of the
Obligors wherever the same may be kept from time to time as it sees fit,
in its sole reasonable discretion, or to cause an examination to be made
by a firm of accountants selected by it, provided that any
examination shall be done without undue interference with the day to day
business of such Obligor;
|
|
|
(f)
|
the
Borrower shall prepare and deliver to the Agent (unless otherwise filed
with or submitted to the Securities and Exchange Commission with the
requirements thereof, in which case the Lenders agree that such filing or
submission satisfies the requirement of this Clause
10.1(f)):
|
|
|
(i)
|
as
soon as available but not later than 90 days after the end of each
Financial Year of the Borrower, complete electronic copies of the
consolidated financial reports of the Borrower and its subsidiaries
(together with a Compliance Certificate and a detailed reconciliation of
all of the differences between GAAP as at December 31, 2006 and as at the
time of delivery), all in reasonable detail, which shall include at least
the consolidated balance sheet of the Borrower and its subsidiaries as of
the end of such year and the related consolidated statements of income and
sources and uses of funds for such year, which shall be audited reports
prepared by an Acceptable Accounting Firm;
|
|
|
(ii)
|
as
soon as available but not later than 45 days after the end of each of the
first three quarters of each Financial Year of the Borrower, an electronic
quarterly interim consolidated balance sheet of the Borrower and its
subsidiaries and the related consolidated profit and loss statements and
sources and uses of funds (together with a Compliance Certificate and a
detailed reconciliation of all of the differences between GAAP as at
December 31, 2006 and as at the time of delivery), all in reasonable
detail, unaudited, but certified to be true and complete by the chief
financial officer of the Borrower;
|
|
|
(iii)
|
within
ten (10) days of the filing thereof, electronic copies of all registration
statements and reports on Forms 20-F and 6-K (or their equivalents) and
other material filings which the Borrower shall have filed with the United
States Securities and Exchange Commission or any similar governmental
authority;
|
|
|
(iv)
|
promptly
upon the mailing thereof to the shareholders of the Borrower, electronic
copies of all financial statements, reports, proxy statements and other
communications provided to the Borrower’s shareholders;
|
|
|
(v)
|
no
later than January 31 of each Financial Year of the Borrower, a copy of
its three (3) year forecast and projection, certified to be true and
complete by the chief financial officer of the Borrower;
and
|
|
|
(vi)
|
as
soon as practicable given the timing and extent of the request, such other
statements (including, without limitation, monthly consolidated statements
of operating revenues and expenses), lists of assets and accounts, reports
and other financial information with respect to its business as the Agent
may from time to time request, certified to be true and complete by the
chief financial officer of the Borrower;
|
|
|
(g)
|
the
Borrower shall procure and deliver to the Agent a written appraisal report
setting forth the Fair Market Value of each Ship as
follows:
|
|
|
(i)
|
at
the Borrower’s expense, for inclusion with each Compliance Certificate
required to be delivered under Clause 10.1(f)(i);
|
|
|
(ii)
|
at
the Borrower’s expense, once each Financial Year upon the request of the
Agent or the Majority Lenders; and
|
|
|
(iii)
|
at
the Lenders’ expense, at all other times upon the request of the Agent or
the Majority Lenders, unless an Event of Default has occurred and is
continuing, in which case the Borrower shall procure it at its expense as
often as requested;
|
|
|
(h)
|
each
Obligor shall prepare and timely file all tax returns required to be filed
by it and pay and discharge all taxes imposed upon it or in respect of any
of its property and assets before the same shall become in default, as
well as all lawful claims (including, without limitation, claims for
labor, materials and supplies) which, if unpaid, might become a lien or
charge upon the Collateral or any part thereof, except in each case, for
any such taxes (i) as are being contested in good faith by appropriate
proceedings or (ii) the failure of which to pay or discharge would not be
likely to have a material adverse effect on the business, assets or
financial condition of such Obligor or to affect the legality, validity,
binding effect or enforceability of the Finance
Documents;
|
|
|
(i)
|
each
Obligor shall permit any person designated by the Agent for that purpose
to inspect and review each Ship’s class records and to visit and inspect
each Ship, at the cost of the Obligors, at such times and so often as the
Agent may reasonably require, provided that (i) any
visitation and inspection shall be done without undue interference with
the operation of such Ship, (ii) so long as no Event of Default has
occurred and is continuing, the Agent shall not exercise such inspection
right in respect of a Ship or its class records more than one time per
year and (iii) the person designated by the Agent to visit and inspect a
Ship shall execute a release and waiver satisfactory in form and substance
to the relevant Obligor and the Agent;
|
|
|
(j)
|
if
the Agent shall so request, provide the Agent with copies of all
inspection and survey reports on the Ships and, if the Agent shall so
require, cause the Ships to be surveyed by a surveyor appointed by the
Agent; all costs arising in connection with any such survey or surveys
(including, but not without limitation, the fees of the relevant surveyor
or firm of surveyors appointed by the Agent to make such survey or
surveys) shall be borne by the Borrower; provided that the
Borrower shall only be required to pay for one such report per Ship during
any two calendar year period;
|
|
|
(k)
|
each
Obligor shall procure that each Ship shall at all times be (i) kept in a
good and safe condition and state of repair that is consistent with
first-class ship ownership and management practice, (ii) in compliance
with all laws and regulations applicable to vessels (A) registered under
the law of the Approved Flag State in which such Ship is registered and
(B) trading to any jurisdiction to which such Ship may trade from time to
time, (iii) managed by the Approved Managers in accordance with vessel
management agreements acceptable to the Majority Lenders, (iv) registered
under the law of an Approved Flag State, and (v) classed with the
Classification Society in the highest classification and rating for
vessels of the same age and type without any outstanding conditions or
recommendations affecting class (other than those for which the time
prescribed for curing the condition or recommendation has not
passed);
|
|
|
(l)
|
each
Obligor shall procure that the operator of each Ship will comply, in all
material respects within the requisite applicable time limits for vessels
of the same type, size, age and flag as such Ship, with the ISM Code and,
in particular, without prejudice to the generality of the foregoing, as
and when required to do so by the ISM Code and at all times thereafter,
(i) procure that the operator of each Ship holds a valid Document of
Compliance and Safety Management Certificate, (ii) provide the Agent with
copies of any such Document of Compliance and Safety Management
Certificate promptly following the issuance thereof and after every
renewal and (iii) procure that there is kept, on board each Ship a copy of
any such Document of Compliance and the original of any such Safety
Management Certificate;
|
|
|
(m)
|
each
Obligor shall procure that:
|
|
|
(i)
|
each
Ship maintains for the duration of the Security Period a valid
International Ship Security Certificate;
|
|
|
(ii)
|
such
Ship’s security system and associated security equipment complies with the
applicable requirements of Chapter XI-2 of SOLAS and Part A of the ISPS
Code; and
|
|
|
(iii)
|
an
approved ship security plan is in place;
|
|
|
(n)
|
each
Obligor shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence in good
standing;
|
|
|
(o)
|
each
Obligor shall maintain, or cause to be maintained, insurance on each Ship
as required by the terms of the Mortgage, including without limiting the
foregoing:
|
|
|
(i)
|
fire
and usual marine risks (including hull and machinery and excess
risks);
|
|
|
(ii)
|
war
risks (including protection and indemnity war risks);
|
|
|
(iii)
|
protection
and indemnity risks (including pollution risks and freight, demurrage and
defense cover); and
|
|
|
(iv)
|
any
other risks against which the Security Trustee may advise or, on
instruction of the Majority Lenders shall advise, having regard to
practices and other circumstances prevailing at the relevant time, that it
would be reasonable for the relevant Obligor to insure, as specified by
the Security Trustee by notice to such Obligor;
|
|
|
(p)
|
each
Obligor shall maintain insurance on any of its properties other than the
Ship owned by it, payable in United States Dollars, with responsible
companies, in such amounts and against such risks as is usually carried by
owners of similar businesses and properties in the same general areas in
which it operates, and as shall be satisfactory to the Majority
Lenders;
|
|
|
(q)
|
except
to the extent the failure to do so could not reasonably be expected to
have a material adverse effect on the business, assets or financial
condition of the Obligors or which may affect the legality, validity,
binding effect or enforceability of the Finance Documents, each Obligor
shall maintain and preserve all of its properties that are used or useful
in the conduct of its business in good working order and condition,
ordinary wear and tear excepted;
|
|
|
(r)
|
the
Obligors shall use the proceeds of the Loan solely for the purposes stated
in the recitals to this Agreement;
|
|
|
(s)
|
[intentionally
omitted];
|
|
|
(t)
|
each
Obligor shall take, or cause to be taken, such actions as may be
reasonably required to mitigate potential liability to it arising out of
pollution incidents or as may be reasonably required to protect the
interests of the Credit Parties with respect thereto;
|
|
|
(u)
|
each
Obligor shall cause all loans made to it by any other Obligor or any
Affiliate, and all sums and other obligations (financial or otherwise)
owed by it to the Approved Manager (Cardiff) to be fully subordinated to
all Secured Liabilities of such Obligor;
|
|
|
(v)
|
the
Borrower shall be the only legal and beneficial shareholder of each of the
Intermediate Holding Companies and the relevant Intermediate Holding
Company shall be the only legal and beneficial shareholder of the relevant
Guarantor;
|
|
|
(w)
|
the
Borrower shall maintain its listing on the NASDAQ Global Market or the New
York Stock Exchange, if the Company moves its listing from the NASDAQ
Global Market to the New York Stock Exchange;
|
|
|
(x)
|
each
Obligor shall to the best of its knowledge and ability (i) ensure that no
person who owns a controlling interest in or otherwise controls such
Obligor or any subsidiary thereof is or shall be listed on the Specially
Designated Nationals and Blocked Person List or other similar lists
maintained by OFAC, the Department of the Treasury or included in any
Executive Orders, (ii) not use or permit the use of the proceeds of the
Loan to violate any of the foreign asset control regulations of OFAC or
any enabling statute or Executive Order relating thereto, and (iii)
comply, and cause each of its subsidiaries to comply, with all applicable
Bank Secrecy Act laws and regulations, as amended;
|
|
|
(y)
|
upon
the Agent’s request, each Obligor shall; promptly supply, or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent in order for each Lender to carry out and be
satisfied with the results of all necessary “know your client” or other
checks which it is required to carry out in relation to the transactions
contemplated by this Agreement and the other Finance Documents and to the
identity of any parties to the Finance Documents (other than the Lenders)
and their directors and officers;
|
|
|
(z)
|
the
Borrower shall cause each Additional Ship Owner to execute and deliver an
Accession Agreement on or before an Expected Drawdown Date in respect of
an Advance of the Tranche A Loan and/or the Tranche B Loan where the
proceeds of such Advance will be used to fund the acquisition of an
Additional Ship;
|
|
|
(aa)
|
each
Guarantor shall deposit or shall cause to be deposited all Earnings and
any Requisition Compensation of its Ship into its Earnings Account (and
the Borrower shall cause each Additional Ship Owner and any Replacement
Ship Owner which becomes a party hereto pursuant to an Accession Agreement
to open an Earnings Account with the Agent);
|
|
|
(bb)
|
a
Guarantor who lets its Ship by any time or consecutive voyage charter for
a term which exceeds or which by virtue of any optional extensions therein
contained would be reasonably likely to exceed 12 months’ duration shall
execute and deliver a Charter Assignment and shall use reasonable
commercial efforts to cause the charterer to execute and deliver to the
Security Trustee a consent and acknowledgement to such Charter Assignment;
and
|
|
|
(cc)
|
from
time to time, at its expense, each Obligor shall provide such additional
information and duly execute and deliver to the Agent such further
documents and assurances as the Majority Lenders or the Agent may
reasonably request to effectuate the purposes of this Agreement, the other
Finance Documents or obtain the full benefit of any of the
Collateral.
|
|
|
10.2
|
Negative
covenants. From the Closing Date until all
Commitments have terminated and all amounts payable hereunder have been
paid in full:
|
|
|
(a)
|
none
of the Guarantors will create, assume or permit to exist any Security
Interest whatsoever upon any of its properties or assets, whether now
owned or hereafter acquired, except for Permitted Security
Interests;
|
|
|
(b)
|
none
of the Obligors shall sell, transfer or lease all of or a substantial
portion of its properties and assets, or enter into any transaction of
merger or consolidation or liquidate, windup or dissolve itself (or suffer
any liquidation or dissolution), unless:
|
|
|
(i)
|
immediately
after giving effect to such transaction, no Event of Default shall have
occurred and be continuing; and
|
|
|
(ii)
|
with
respect to any such sale, transfer, lease or disposition or transaction of
merger or consolidation, the purchaser, transferee or surviving company
(as the case may be) is reasonably acceptable to the Majority Lenders and
assumes all obligations and liabilities (including, without limitation,
any obligations or liabilities under the Finance Documents) of the seller,
transferor or non-surviving entity (as the case may be) hereunder, such
assumption of obligations and liabilities to be in form and substance
satisfactory to the Majority Lenders;
|
|
|
(c)
|
none
of the Obligors will enter into any transaction or series of related
transactions, whether or not in the ordinary course of business, with any
Affiliate or subsidiary, other than on terms and conditions substantially
as favorable to such person as would be obtainable by such person at the
time in a comparable arm’s-length transaction with a person other than an
Affiliate or subsidiary;
|
|
(d)
|
none
of the Obligors shall change the nature of its business or commence any
business otherwise than in connection with, or for the purpose of, owning
and/or operating the Ships;
|
|
(e)
|
none
of the Guarantors will transfer or change or permit the transfer or change
of the flag of its Ship from the Approved Flag in which such Ship is
registered on the Actual Drawdown Date, change the classification or the
Classification Society of such Ship, or do or allow to be done anything as
a result of which such registration or classification might be imperiled
or cancelled;
|
|
(f)
|
none
of the Obligors will change, or permit a change of, the Approved Manager
to a manager that is not an Approved Manager, or agree or consent to or
permit any material amendment or other modification of the terms of any
management agreements relating to the Ships, including any increase in the
rate of compensation payable thereunder;
|
|
(g)
|
none
of the Obligors will permit any act, event or circumstance that would
result in (i) the Borrower owning beneficially and of record less than
100% of the equity of each of the Intermediate Holding Companies or (ii)
the Intermediate Holding Companies owning beneficially and of record less
than 100% of the equity of each of the Guarantors, and except for the
Share Pledges, (x) the Borrower shall not sell, transfer, pledge, assign
or otherwise convey or dispose of any of the share capital of any
Intermediate Holding Company and (y) the Intermediate Holding Companies
shall not sell, transfer, pledge, assign or otherwise convey or dispose of
any of the share capital of any Guarantor;
|
|
(h)
|
none
of the Guarantors will increase its capital by way of the creation of
preference securities, further common or ordinary securities or otherwise
howsoever, or create any new class of equity;
|
|
(i)
|
none
of the Guarantors will incur any Financial Indebtedness other than (i) in
the usual course of business, (ii) as permitted by the Finance Documents
or (iii) unsecured Financial Indebtedness that is fully subordinated to
the Guaranteed Obligations;
|
|
(j)
|
none
of the Guarantors will create or otherwise cause or permit to exist or
become effective any consensual encumbrance or restriction on the ability
of any Guarantor to (i) pay dividends or make any other distributions on
its capital stock to the Borrower or any Guarantor or pay any Financial
Indebtedness owed to the Borrower, (ii) make any loans or advances to the
Borrower or (iii) transfer any of its property or assets to the
Borrower;
|
|
(k)
|
none
of the Guarantors will acquire any capital assets (including any vessel
other than the Ship to be owned by it) by purchase, charter or otherwise;
provided that for
the avoidance of doubt nothing in this Clause 10.2(k) shall prevent or be
deemed to prevent capital improvements being made to the Ship to be owned
by it;
|
|
(l)
|
except
in connection with the financing of the Ships, none of the Guarantors will
make any loan or advance to, make any investment in, or enter into any
working capital maintenance or similar agreement with respect to any
person (other than an Obligor), whether by acquisition of stock or
indebtedness, by loan, guarantee or
otherwise;
|
|
(m)
|
none
of the Guarantors will sell its Ship except for cash, on an arm’s-length
basis at fair market value;
|
|
|
(n)
|
none
of the Obligors will enter into any arrangements, directly or indirectly,
with any person whereby it shall sell or transfer any property, whether
real or personal, and used and useful in its business, whether now owned
or hereafter acquired, if it, at the time of such sale or disposition,
intends to lease or otherwise acquire the right to use or possess (except
by purchase) such property or like property for a substantially similar
purpose;
|
|
|
(o)
|
none
of the Obligors shall change its Financial Year or make or permit any
change in accounting policies affecting (i) the presentation of financial
statements or (ii) reporting practices, except in either case in
accordance with accounting principles and practices acceptable to the
Agent with the consent of the Majority Lenders;
|
|
|
(p)
|
none
of the Obligors shall change its jurisdiction of incorporation or amend
its constitutional documents except in connection with a merger or
consolidation that is not prohibited by the terms of Clause
10.2(b);
|
|
|
(q)
|
except
as permitted by the relevant Mortgage or Deed of Covenant, none of the
Guarantors shall let its Ship:
|
|
|
(i)
|
on
demise charter for any period;
|
|
|
(ii)
|
on
terms whereby more than two (2) months’ hire (or the equivalent) is
payable in advance;
|
|
|
(iii)
|
below
the market rate prevailing at the time when the Ship is fixed or on any
other than arm’s length terms; or
|
|
|
(iv)
|
by
demise charter, time charter, voyage charter or otherwise to any of its or
the Borrower’s subsidiaries or Affliates or the Approved Manager (unless
such Ship is contemporaneously sub-chartered at the prevailing market rate
to a third party that is not a subsidiary or an Affiliate of such
Guarantor or of the Borrower and such sub-charter and all rights
thereunder are assigned to the Security Trustee as security for the
Secured Liabilities);
|
|
|
(r)
|
none
of the Obligors shall change the location of its chief executive office or
the office where its corporate records are kept or open any new office for
the conduct of its business on less than thirty (30) days prior written
notice to the Agent;
|
|
|
(s)
|
none
of the Obligors shall contravene any law, official requirement or other
regulatory measure or procedure implemented to combat “money laundering”
(as defined in Article 1 of the Directive (91/308/EEC) of the Council of
the European Communities) and comparable United States Federal and state
laws; or
|
|
|
(t)
|
the
Borrower may not pay dividends if an Event of Default has occurred and is
continuing or would result therefrom.
|
|
|
10.3
|
Financial
Covenants and Collateral Maintenance Ratio.
|
|
|
(a)
|
From the Closing Date until all
Commitments have terminated and all amounts payable hereunder have been
paid in full, the Borrower (on a consolidated basis) will not
permit the ratio of Funded Debt to Total Capitalization on the last day of
any fiscal quarter of the Borrower to be greater than 0.70 to
1.00.
|
|
|
(b)
|
Commencing on July 1, 2008 and
until all Commitments have terminated and all amounts payable hereunder
have been paid in full, the Borrower (on a consolidated basis) will not
permit Liquidity to be less than (i) $500,000 multiplied by (ii) the
number of Ships owned directly or indirectly by the
Borrower.
|
|
|
(c)
|
Commencing with the fiscal quarter
ending December 31, 2007 and until all Commitments have terminated and all
amounts payable hereunder have been paid in full, the Borrower (on a
consolidated basis) will not permit the ratio of EBITDA to Net Interest
Expense on the last day of any fiscal quarter be less than 2.50 to 1.00
(based on the last four consecutive fiscal quarters), provided
that (i) with respect
to the fiscal quarter ended on December 31, 2007 the ratio shall be
calculated based on the last consecutive fiscal quarter (on an annualized
basis), (ii) with respect to the fiscal quarter ended on March 31, 2008
the ratio shall be calculated based on the last two consecutive fiscal
quarters (on an annualized basis) and (iii) with respect to the fiscal
quarter ended on June 30, 2008 the ratio shall be calculated based on the
last three consecutive fiscal quarters (on an annualized
basis).
|
|
|
(d)
|
From
the Closing Date and until
all Commitments have terminated and all amounts payable hereunder have
been paid in full, the aggregate Fair Market Value of the Ships
plus deposits as per Clause 7.9(b) (including in respect of insurance
proceeds receivable, on a pro forma basis before such proceeds are
deposited with the Security Trustee) shall be not less than 140% of the
Loan plus any unutilized Commitment in respect of the Tranche A Loan (the
“Collateral Maintenance
Ratio”) (as confirmed by the most recent Fair Market Value
appraisal report delivered to the Agent under Clause
10.1(g)). If, at any time, the Collateral Maintenance Ratio
shall be less than 140%, the Agent (acting upon the instruction of the
Majority Lenders) shall have the right to require the Borrower and/or the
Obligors, within 30 Business Days of the date of the written demand of the
Agent, to either (at the Borrower’s option):
|
|
|
(i)
|
prepay
the Loan in such amount as may be necessary to cause such aggregate Fair
Market Value of the Ships to equal or exceed the Collateral Maintenance
Ratio;
|
|
|
(ii)
|
provide
such additional Collateral as may be acceptable to the Agent in its sole
reasonable discretion (acting upon the instruction of the Majority
Lenders) so that aggregate Fair Market Value of the Ships and such
additional Collateral equals or exceeds the Collateral Maintenance
Ratio,
|
|
|
and
the Obligors hereby agree to comply with any such written demand made by
the Agent.
|
||
|
As
an alternative to (i) or (ii) of this Clause 10.3(d), the Agent may agree
with the Borrower to reduce any unutilized Commitment in respect of the
Tranche A Loan in such amount as may be necessary to cause such aggregate
Fair Market Value of the Ships plus deposits as per Clause 7.9(b)
(including in respect of insurance proceeds receivable, on a pro forma
basis before such proceeds are deposited with the Security Trustee) to
equal or exceed the Collateral Maintenance Ratio.
|
||
|
(e)
|
A
prepayment under Clause 10.3(d) shall be treated and applied as a
voluntary prepayment under Clause 7.5.
|
|
(f)
|
From
the Closing Date and until
all Commitments have terminated and all amounts payable hereunder have
been paid in full, the weighted average age of the
Ships (weighted by the Fair Market Value of the Ships) shall not exceed 18
years. If any Ship reaches the age of 21 years or more
during this period, such Ship shall be assigned no value in the
calculation of the aggregate Fair Market Value of the
Ships.
|
|
11
|
GUARANTEE
|
|
11.1
|
Guarantee. In
order to induce the Lenders to make the Loan to the Borrower, and to
induce the Swap Bank to enter into Designated Transactions with the
Borrower, the Guarantors jointly and severally hereby guarantee (this
“Guarantee”), each
as a primary obligor and not merely as a surety, the performance and
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all Secured Liabilities of the Borrower now or hereafter
existing under this Agreement and any other Finance Document, whether for
principal, interest, fees, expenses or otherwise (collectively, the “Guaranteed Obligations”)
due or owing to any of the Lenders or the Swap Bank (each, a “Guaranteed Party”), and
agrees to pay any and all expenses (including, without limitation, counsel
fees and expenses) incurred by a Guaranteed Party or the Security Trustee
or the Agent in enforcing any rights under this Guarantee. The
obligations of the Guarantors under this Guarantee are in addition to and
shall not in any way be prejudiced by any other guaranty or security now
or subsequently held by the Guaranteed Parties. The Guarantors
hereby further jointly and severally agree that if the Borrower shall fail
to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Guarantors will promptly
pay the same, on first demand, and that in the case of any extension of
time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension
or renewal.
|
|
11.2.
|
Obligations
absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be performed and paid to the Guaranteed Parties strictly
in accordance with the terms of any applicable agreement, express or
implied, of the Borrower, regardless of any law, regulation or order of
any jurisdiction affecting any term of any Guaranteed Obligation or the
rights of the Guaranteed Parties with respect thereto, including, without
limitation, any law, rule or policy which is now or hereafter promulgated
by any governmental authority (including, without limitation, any central
bank) or regulatory body any of which may adversely affect the Borrower’s
ability or obligation to make, or right of the Guaranteed Parties to
receive, such payments, including, without limitation, any sovereign act
or circumstance which might otherwise constitute a defense to, or a legal
or equitable discharge of, the Borrower.
|
|
11.3
|
Guarantee
Unconditional. The liability of each Guarantor hereunder
shall be unconditional irrespective of, and each Guarantor hereby waives
any defenses it may assert with respect to:
|
|
(a)
|
any
lack of validity or enforceability of any Guaranteed Obligation or
agreement or instrument relating thereto;
|
|
(b)
|
any
change in the time, manner or place of payment of, or in any other term
of, any Guaranteed Obligation;
|
|
(c)
|
any
exchange, release or non-perfection of any other Collateral securing
payment of any Guaranteed Obligation;
|
|
(d)
|
any
moratorium, bankruptcy, insolvency or other similar law or any other law,
regulation or order of any jurisdiction affecting any term of any
Guaranteed Obligation or a Guaranteed Party’s rights with respect thereto;
or
|
|
(e)
|
any
other circumstance which might otherwise constitute a defense available
to, or the discharge of, the Borrower, or a Guarantor.
|
|
11.4
|
Waiver of subrogation;
Contribution. Notwithstanding any other provision of
this Guarantee, until payment in full of the Guaranteed Obligations in
cash after termination of any of the Guaranteed Parties’ commitments with
respect thereto:
|
|
(a)
|
each
Guarantor hereby irrevocably waives any right to assert, enforce, or
otherwise exercise any right of subrogation to any of the rights, security
interests, claims, or liens which the Guaranteed Parties have against the
Borrower or any other Guarantor in respect of the Guaranteed
Obligations;
|
|
(b)
|
each
Guarantor shall not have any right of recourse, reimbursements,
contribution, indemnification, or similar right (by contract or otherwise)
against the Borrower or any other Guarantor in respect of the Guaranteed
Obligations; and
|
|
(c)
|
each
Guarantor hereby irrevocably waives any and all of the foregoing rights
and also irrevocably waives the benefit of, and any right to participate
in, any Collateral or other security given to the Guaranteed Parties to
secure payment of the Guaranteed Obligations.
|
|
11.5
|
Subordination. The
Guarantors agree that, so long as the Borrower remains under any actual or
contingent liability under this Agreement or any other Finance Document,
any rights which the Guarantors may have at any time by reason of the
performance by the Guarantors of the Guaranteed Obligations to take the
benefit (in whole or in part) of any security taken pursuant to this
Agreement or any of the other Finance Documents shall be subject and
subordinate to the rights of the Guaranteed Parties hereunder and shall be
exercised by the Guarantors in such manner and upon such terms as the
Guaranteed Parties may require and further agree to hold any monies at any
time received by the Guarantors as a result of the exercise of any such
rights or otherwise for and on behalf of the Guaranteed Parties for
application in or towards payment of any sums at any time owed by the
Borrower under the Agreement or the other Finance
Documents.
|
|
11.6
|
Reinstatement. This
Guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by a Guaranteed
Party.
|
|
11.7
|
Waiver. Each
Guarantor waives promptness, diligence and notices with respect to any
Guaranteed Obligation and this Guarantee and any requirement that a
Guaranteed Party exhaust any right or take any action against the Borrower
or any other entity or any or their property.
|
|
11.8
|
Payments;
No Reductions.
|
|
(a)
|
All
payments under this Guarantee shall be made in accordance with Clauses 12,
16 and 17 of this Agreement.
|
|
(b)
|
Each
Guarantor agrees to pay any taxes which arise from any payment made
hereunder or from the execution, delivery or registration by such
Guarantor of, or otherwise with respect to, this
Agreement.
|
|
(c)
|
Each
Guarantor will indemnify a Guaranteed Party in accordance with Clause 16
upon demand.
|
|
(d)
|
Within
30 days after the date of any payment of taxes, the affected Guarantor
will furnish to each Guaranteed Party at its address for notices, the
original or a certified copy of a receipt evidencing payment
thereof. If no taxes are payable in respect of any payment, a
Guarantor will furnish to each Guaranteed Party a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to each
Guaranteed Party, in either case stating that such payment is exempt from
or not subject to taxes.
|
|
11.9
|
Continuing
Guarantee. This Guarantee is a continuing guaranty, is
joint and several with any other guarantee given in respect of the
Guaranteed Obligations, and shall remain in full force and effect until
the later of the termination of any Commitment of the Lenders under this
Agreement and the payment in full of the Guaranteed Obligations and all
other amounts payable hereunder and shall be binding upon each Guarantor,
its successors and permitted assigns. The obligations of each
Guarantor under this Guarantee shall rank pari passu with all
other unsecured obligations of such Guarantor.
|
|
12
|
PAYMENTS
AND CALCULATIONS
|
|
12.1
|
Currency and method of
payments. All payments to be made by any Obligor under a
Finance Document shall be made to the Agent:
|
|
(a)
|
not
later than 11:00 a.m. (New York City time) on the due date (any payment
received after 11:00 a.m. New York City time shall be deemed to have been
paid on the next Business Day);
|
|
(b)
|
in
same day Dollar funds settled through the New York Clearing House
Interbank Payments System (or in such other Dollar funds and/or settled in
such other manner as the Agent shall specify as being customary at the
time for the settlement of international transactions of the type
contemplated by this Agreement); and
|
|
(c)
|
to
account number 300030007278532, maintained
at Nordea Bank Finland PLC, New York Branch, located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX, ABA Number: 000000000, SWIFT:
NDEAUS3NXXX, Attention: Credit Administration, re: OceanFreight, or to
such other account with such other office of the Agent or bank as the
Agent may from time to time notify to the Obligors.
|
|
12.2
|
Payment on non-Business
Day. If any payment by any Obligor under a Finance
Document would otherwise fall due on a day which is not a Business
Day:
|
|
(a)
|
the
due date shall be extended to the next succeeding Business Day;
or
|
|
(b)
|
if
the next succeeding Business Day falls in the next calendar month, the due
date shall be brought forward to the immediately preceding Business
Day;
|
|
and
interest shall be payable during any extension under paragraph (a) at the
rate payable on the original due date.
|
|
|
12.3
|
Basis for calculation of
periodic payments. All interest and commitment fee and
any other payments under any Finance Document which are of an annual or
periodic nature shall accrue from day to day and shall be calculated on
the basis of the actual number of days elapsed and a 360 day
year.
|
|
12.4
|
Distribution of payments to
Credit Parties. Subject to Clauses 12.5, 12.6 and
12.7:
|
|
(a)
|
any
amount received by the Agent under a Finance Document for distribution or
remittance to a Credit Party shall be made available by the Agent to that
Credit Party by payment, with funds having the same value as the funds
received, to such account as such Credit Party may have notified to the
Agent not less than five (5) Business Days previously;
and
|
|
(b)
|
amounts
to be applied in satisfying amounts of a particular category which are due
to the Lenders generally shall be distributed by the Agent to each Lender
pro rata to the
amount in that category which is due to it.
|
|
12.5
|
Permitted deductions by
Agent. Notwithstanding any other provision of this
Agreement or any other Finance Document, the Agent may, before making an
amount available to a Credit Party, deduct and withhold from that amount
any sum which is then due and payable to the Agent from that Credit Party
under any Finance Document or any sum which the Agent is then entitled
under any Finance Document to require that Lender to pay on
demand.
|
|
12.6
|
Agent only obliged to pay when
monies received. Notwithstanding any other provision of
this Agreement or any other Finance Document, the Agent shall not be
obliged to make available to the Borrower or any Credit Party any sum
which the Agent is expecting to receive for remittance or distribution to
the Borrower or that Credit Party until the Agent has satisfied itself
that it has received that sum.
|
|
12.7
|
Refund to Agent of monies not
received. Except as is otherwise provided in Clause
3.4(b) of this Agreement, if and to the extent that the Agent makes
available a sum to the Borrower or a Credit Party, without first having
received that sum, the Borrower or (as the case may be) the Credit Party
concerned shall, on demand:
|
|
(a)
|
refund
the sum in full to the Agent; and
|
|
(b)
|
pay
to the Agent the amount (as certified by the Agent) which will indemnify
the Agent against any funding or other loss, liability or expense incurred
by the Agent as a result of making the sum available before receiving
it.
|
|
12.8
|
Agent may assume
receipt. Clause 12.7 shall not affect any claim which
the Agent has under the law of restitution, and applies irrespective of
whether the Agent had any form of notice that it had not received the sum
which it made available (except an express notice from a Lender that it
will not fund its Ratable Portion of any Advance of a
Tranche).
|
|
12.9
|
Credit Party
accounts. Each Credit Party shall maintain accounts
showing the amounts owing to it by the Borrower under the Finance
Documents and all payments in respect of those amounts made by the
Borrower.
|
|
12.10
|
Agent’s memorandum
account. The Agent shall maintain a memorandum account
showing the amounts advanced by the Lenders and all other sums owing to
the Agent, the Security Trustee and each Lender from the Obligors under
the Finance Documents and all payments in respect of those amounts made by
the Obligors.
|
|
12.11
|
Accounts prima facie
evidence. If any accounts maintained under Clauses 12.9
and 12.10 show an amount to be owing by an Obligor to a Credit Party,
those accounts shall be prima facie evidence that that amount is owing to
that Credit Party.
|
|
13
|
APPLICATION
OF RECEIPTS
|
|
13.1
|
Normal order of
application. Except as this Agreement or any other
Finance Document may otherwise provide, any sums which are received or
recovered by the Agent or the Security Trustee under or by virtue of any
Finance Document shall be paid to the account of the Agent identified in
Clause 12.1(c) and applied by the Agent in the following
manner:
|
|
FIRST:
in or towards the payment or reimbursement of any expenses or liabilities
incurred by the Agent, the Security Trustee or the Lenders in connection
with the ascertainment, protection or enforcement of their respective
rights and remedies hereunder and under the other Finance Documents,
including without limitation any amounts due under Clause 16
hereof;
|
|
|
SECOND:
in or towards payment of any accrued default interest due but unpaid under
Clause 6;
|
|
|
THIRD:
in or towards payment of any accrued interest due but unpaid under Clause
4 on a pro rata
basis to each outstanding Tranche of the Loan;
|
|
|
FOURTH:
in or towards payment, on a pro rata basis to each
outstanding Tranche of the Loan, of any principal due but unpaid under
Clause 7 hereof;
|
|
|
FIFTH:
in or towards payment of all other sums which may be owing to any Credit
Party under this Agreement and the other Finance Documents (or any of
them),
|
|
|
SIXTH:
in or towards the payments of any amounts then due under the Master
Agreement; and
|
|
|
SEVENTH:
any surplus shall be paid to the Borrower or to whomsoever else may be
entitled thereto.
|
|
|
13.2
|
Application of credit
balances. A Lender may with seven (7) days prior notice
or without prior notice if an Event of Default has occurred and is
continuing:
|
|
(a)
|
apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of an Obligor at any office of such
Lender in any country in or towards satisfaction of any sum then due from
that Obligor to such Lender under any of the Finance Documents;
and
|
|
(b)
|
for
that purpose:
|
|
(i)
|
break,
or alter the maturity of, all or any part of a deposit of that
Obligor;
|
|
|
(ii)
|
convert
or translate all or any part of a deposit or other credit balance into
Dollars;
|
|
|
(iii)
|
enter
into any other transaction or make any entry with regard to the credit
balance which such Lender considers appropriate.
|
|
|
13.3
|
Existing rights
unaffected. A Lender shall not be obliged to exercise
any of its rights under Clause 13.2; and those rights shall be without
prejudice and in addition to any right of set-off, combination of
accounts, charge, lien or other right or remedy to which such Lender is
entitled (whether under the general law or any
document).
|
|
|
13.4
|
Payments in excess of ratable
share. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off,
counterclaim or otherwise) on account of its portion of the Loan and in
excess of its ratable share of payments on account of the Loan obtained by
all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participation in their respective portions of the Loan as
shall be necessary to share the excess payment ratably with each of them;
provided that if
all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded
and such Lender shall repay to the purchasing Lender the purchase price to
the extent of such recovery together with an amount equal to such Lender’s
ratable share (according to the proportion of (i) the amount of such
Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Clause 13.4 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation. Notwithstanding the preceding
sentences of this Clause 13.4, any Lender which shall have commenced or
joined (as a plaintiff) in an action or proceeding in any court to recover
sums due to it under this Agreement or any other Finance Document and
pursuant to a judgment obtained therein or a settlement or compromise of
that action or proceeding shall have received any amount, shall not be
required to share any proportion of that amount with a Lender which has
the legal right to, but does not, join such action or proceeding or
commence and diligently prosecute a separate action or proceeding to
enforce its rights in the same or another court. Each Lender
exercising or contemplating exercising any rights giving rise to a receipt
or receiving any payment of the type referred to in this Clause 13.4 or
instituting legal proceedings to recover sums owing to it under this
Agreement shall, as soon as reasonably practicable thereafter, give notice
thereof to the Agent who shall give notice to the other
Lenders.
|
|
|
14
|
EVENTS
OF DEFAULT
|
|
|
14.1
|
Events of
Default. There shall be an Event of Default
if:
|
|
|
(a)
|
any
payment of (i) principal is not paid when due under this Agreement or any
of the other Finance Documents, or (ii) any interest or any other amount
due to any Credit Party under this Agreement or any of the other Finance
Documents is not paid within three (3) Business Days of the due date or,
only in the case of sums payable on demand, when first demanded (as the
case may be);
|
|
|
(b)
|
any
breach occurs of Clause 8.2, 10.1(b), 10.1(k)(iv), 10.1(o), 10.1(r),
10.1(v), 10.1(w), 10.1(x), 10.2 or 10.3; or
|
|
(c)
|
any
breach occurs of any provision of a Finance Document (other than a breach
covered by paragraphs (a) or (b) above) if, in the opinion of the Majority
Lenders, such default is capable of remedy, and such default continues
unremedied for 10 Business Days after written notice from the Agent
requesting action to remedy the same; or
|
|
(d)
|
subject
to any applicable grace period specified in the Finance Document, any
breach occurs of any provision of a Finance Document (other than a breach
covered by paragraphs (a), (b) or (c) above); or
|
|
(e)
|
any
Obligor shall default (subject to any applicable cure period) in the
payment when due of any Financial Indebtedness (other than in respect of
the Finance Documents) in the outstanding principal amount equal to or
exceeding $1,000,000 or such Financial Indebtedness is, or by reason of
such default is subject to being, accelerated or any party becomes
entitled to enforce the security for any such Financial Indebtedness and
such party shall take steps to enforce the same, unless such default or
enforcement is being contested by such Obligor, in good faith and through
appropriate proceedings and in a manner that does not involve any risk of
sale, forfeiture, loss, confiscation or seizure of any of the Ships, and
such Obligor shall set aside on its books adequate reserves with respect
thereto; or
|
|
(f)
|
any
representation or warranty made by any Obligor or any other party (other
than a Credit Party) in or pursuant to this Agreement or any of the other
Finance Documents or in the Compliance Certificate shall prove to have
been incorrect or misleading in any material respect when made or deemed
made or confirmed; or
|
|
(g)
|
any
of the consents referred to in Clause 9.3 is modified in a manner
unacceptable to the Majority Lenders or is not granted or is revoked or
terminated or expires and is not renewed or otherwise ceases to be in full
force and effect; or
|
|
(h)
|
any
Obligor shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors;
or
|
|
(i)
|
any
proceeding shall be instituted by or against any Obligor seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for it or for any substantial part of its
property and either such proceeding shall remain undismissed or unstayed
for a period of 45 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or
|
|
(j)
|
an
Obligor ceases or threatens to cease to carry on its business except, with
respect to a Guarantor, in the case of a sale or a proposed sale of its
Ship; or
|
|
(k)
|
all
or a material part of the undertakings, assets, rights or revenues of, or
shares or other ownership interest in, an Obligor are seized,
nationalized, expropriated or compulsorily acquired by or under authority
of any government; or
|
|
(l)
|
a
creditor attaches or takes possession of, or a distress, execution,
sequestration or process (each an “action”) is levied or
enforced upon or sued out against, a material part of the undertakings,
assets, rights or revenues (the “assets”) of an Obligor
in relation to a claim by such creditor where such Obligor does not or
does not procure that such action is lifted, vacated, released or
expunged, or substitute security posted, within 30 days of such action
being (i) instituted and (ii) notified to such Obligor;
or
|
|
|
(m)
|
a Change of Control has
occurred; or
|
|
|
(n)
|
a
Ship is sold or becomes a Total Loss and any prepayment required to be
made under Clause 7.9 is not made when due; or
|
|
|
(o)
|
it
becomes impossible or unlawful:
|
|
|
(i)
|
for
an Obligor or any other party thereto (other than a Credit Party) to
fulfill any of the covenants and obligations contained in this Agreement
and/or any of the other Finance Documents or otherwise;
or
|
|
|
(ii)
|
for
a Credit Party to exercise any of the rights vested in it under this
Agreement and/or any of the other Finance Documents or otherwise;
or
|
|
|
(p)
|
there
occurs, in the reasonable opinion of the Majority Lenders, a material
adverse change in the financial condition of an Obligor that impairs the
ability of an Obligor to perform its obligations under any Finance
Document to which it is a party; or
|
|
|
(q)
|
any
other event occurs or circumstance arises which, in the reasonable opinion
of the Majority Lenders, is likely materially and adversely to
affect:
|
|
|
(i)
|
the
ability of an Obligor or any other party (other than a Credit Party) to
perform all or any of its respective obligations under or otherwise to
comply with the terms of this Agreement or any of the other Finance
Documents; or
|
|
|
(ii)
|
the
security created by any Collateral; or
|
|
|
(r)
|
an
event of default, or an event or circumstance which, with the giving of
any notice, the lapse of time or both would constitute an event of default
(subject to any applicable cure period), has occurred under any material
agreement (other than the Finance Documents) to which any of the Obligors
is a party; or
|
|
|
(s)
|
any
judgment or order is made, the effect whereof would be to render
ineffective or invalid this Agreement or any other Finance Document or any
material provision thereof, or any Obligor thereof asserts that any such
agreement or provision thereof is invalid.
|
|
|
14.2
|
Actions following an Event of
Default. On, or at any time after, the occurrence of an
Event of Default the Agent shall at the request, or may with the consent,
of the Majority Lenders:
|
|
|
(a)
|
serve
on the Borrower a notice stating that all obligations of the Lenders to
the Borrower under this Agreement are terminated, whereupon the same shall
forthwith terminate; and/or
|
|
|
(b)
|
serve
on the Borrower a notice stating that the Loan, all accrued interest and
all other amounts accrued or owing under this Agreement or any other
Finance Document are immediately due and payable, whereupon all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided that in the
case of an Event of Default under either of Clauses 14.1(h) or (i), the
Loan and all accrued interest and other amounts accrued or owing hereunder
shall be deemed immediately due and payable without notice or demand
therefor; and/or
|
|
(c)
|
take
any other action which, as a result of the Event of Default or any notice
served under paragraph (a) or (b) above, a Credit Party is entitled to
take under any Finance Document or any applicable law.
|
|
14.3
|
Termination of
obligations. On the service of a notice under paragraph
(a) of Clause 14.2, all the obligations of the Lenders to the Borrower
under this Agreement shall terminate.
|
|
14.4
|
Acceleration of
Loan. On the service of a notice under paragraph (b) of
Clause 14.2, the Loan, all accrued interest and all other amounts accrued
or owing from the Obligors under this Agreement and every other Finance
Document shall become immediately due and payable or, as the case may be,
payable on demand, and the Security Trustee shall forthwith be entitled to
enforce the Security Interests created by this Agreement and any other
Finance Document in any manner available to it and in such sequence as the
Security Trustee may, in its absolute discretion,
determine.
|
|
14.5
|
Multiple notices; action
without notice. The Agent may serve notices under
paragraphs (a) and (b) of Clause 14.2 simultaneously or on different dates
and it may take any action referred to in that Clause if no such notice is
served or simultaneously with or at any time after the service of both or
either of such notices.
|
|
15
|
FEES
AND EXPENSES
|
|
15.1
|
Fees.
|
|
(a)
|
The
Borrower shall pay to the Agent a facility fee and an annual
administration fee as and when required by the Fee
Letter.
|
|
(b)
|
During
the period commencing on October 1, 2007 and ending on the date the Total
Commitments are terminated, the Borrower shall pay to the Agent (for the
account of the Lenders), quarterly in arrears, a commitment fee of 0.45%
per annum on the daily
average unutilized Commitment of each Lender.
|
|
15.2
|
Costs of negotiation,
preparation etc. The Borrower shall pay to the Agent on
its demand the amount of all reasonable and documented expenses incurred
by the Agent or any other Credit Party in connection with the negotiation,
preparation, execution, registration or enforcement of any Finance
Document or any related document or with any transaction contemplated by a
Finance Document or a related document, including, without limitation, the
reasonable fees and disbursements of a Credit Party’s legal counsel and
any local counsel retained by them.
|
|
15.3
|
Costs of variations,
amendments, enforcement etc. The Borrower shall pay to
the Agent, on the Agent’s demand, the amount of all reasonable and
documented expenses incurred by the Credit Parties in connection
with:
|
|
(a)
|
any
amendment or supplement to a Finance Document, or any proposal for such an
amendment to be made;
|
|
(b)
|
any
consent or waiver by any Credit Party under or in connection with a
Finance Document, or any request for such a consent or
waiver;
|
|
(c)
|
the
valuation of or any other matter relating to the Collateral;
or
|
|
(d)
|
any
step taken by a Credit Party with a view to the protection, exercise or
enforcement of any right or Security Interest created by a Finance
Document or for any similar purpose.
|
|
There
shall be recoverable under paragraph (d) the full amount of all legal
expenses as may be incurred by such Credit Party.
|
|
|
15.4
|
Documentary
taxes. The Borrower shall promptly pay any tax payable
on or by reference to any Finance Document, and shall, on demand, fully
indemnify any Credit Party against any liabilities and expenses resulting
from any failure or delay by the Borrower to pay such a
tax.
|
|
16
|
INDEMNITIES
|
|
16.1
|
Indemnities regarding borrowing
and repayment of Loan. The Borrower shall fully
indemnify a Lender on a Lender’s first demand in respect of all reasonable
and duly documented expenses, liabilities and losses which are incurred by
such Lender, or which such Lender reasonably and with due diligence
estimates that it will incur, as a result of or in connection
with:
|
|
(a)
|
an
Advance not being borrowed on the Expected Drawdown Date specified in the
Drawdown Notice for such Advance for any reason other than a default by
such Lender;
|
|
(b)
|
the
receipt or recovery of all or any part of the Loan or an overdue sum
otherwise than on the last day of an Interest Period or other relevant
period;
|
|
(c)
|
any
failure (for whatever reason) by the Borrower to make payment of any
amount due under a Finance Document on the due date or, if so payable, on
demand (after giving credit for any default interest paid by the Borrower
on the amount concerned);
|
|
(d)
|
the
occurrence and/or continuance of an Event of Default or a Potential Event
of Default and/or the acceleration of repayment of the Loan under Clause
14; and
|
|
(e)
|
in
respect of any tax (other than tax on its overall net income imposed by a
taxing jurisdiction in which such Lender is organized, holds or books the
Loan or has a principal place of business) for which such Lender is liable
in any jurisdiction directly in connection with any amount paid or payable
to such Lender under any Finance Document.
|
|
16.2
|
Breakage
costs. Without limiting its generality, Clause 16.1
covers any liability, expense or actual loss incurred by a
Lender:
|
|
(a)
|
in
liquidating or employing deposits from third parties acquired or arranged
to fund or maintain all or any part of the Loan and/or any overdue amount
(or an aggregate amount which includes the Loan or any overdue amount);
and
|
|
(b)
|
in
terminating, or otherwise in connection with, any interest and/or currency
swap or any other transaction entered into (whether with another legal
entity or with another office or department of such Lender) to hedge any
exposure arising under this Agreement or that part which such Lender
determines is fairly attributable to this Agreement of the amount of the
liabilities, expenses or losses incurred by it in terminating, or
otherwise in connection with, a number of transactions of which this
Agreement is one.
|
|
It
is understood and agreed that unless an Event of Default has occurred and
is continuing any gain realized by a Lender under Clause 16.2(b) shall be
for credit against the amount then due from the Borrower to such
Lender.
|
|
|
16.3
|
Miscellaneous
indemnities. The Borrower shall fully indemnify each
Credit Party in respect of all claims, demands, proceedings, liabilities,
taxes, losses and expenses of every kind (“liability items”) which
may be made or brought against, or incurred by, such Credit Party, in any
country, in relation to:
|
|
(a)
|
any
action taken, or omitted or neglected to be taken, under or in connection
with any Finance Document by such Credit Party or by any receiver
appointed under a Finance Document;
|
|
(b)
|
any
other event, matter or question which occurs or arises at any time during
the Security Period and which has any connection with any payment or other
transaction relating to a Finance Document or any asset covered (or
previously covered) by a Security Interest created (or intended to be
created) by a Finance Document;
|
|
other
than liability items which are shown to have been caused by the gross
negligence or willful misconduct of such Credit Party’s own officers or
employees.
|
|
|
16.4
|
Other
indemnities. The Borrower further agrees to fully
indemnify each Credit Party on any such Credit Party’s first demand in
respect of all reasonable expenses, liabilities and losses which are
incurred by such Credit Party, or which such Credit Party reasonably and
with due diligence estimates that it will incur, as a result of or in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of the Finance Documents and any other document
to be delivered hereunder.
|
|
16.5
|
Currency
indemnity. If any sum due from an Obligor to any Credit
Party under a Finance Document or under any order or judgment relating to
a Finance Document has to be converted from the currency in which the
Finance Document provided for the sum to be paid (the “Contractual Currency”)
into another currency (the “Payment Currency”) for
the purpose of:
|
|
(a)
|
making
or lodging any claim or proof against such Obligor, whether in its
liquidation, any arrangement involving it or otherwise;
or
|
|
(b)
|
obtaining
an order or judgment from any court or other tribunal;
or
|
|
|
(c)
|
enforcing
any such order or judgment,
|
|
|
such
Obligor shall indemnify such Credit Party against the loss arising when
the amount of the payment actually received by such Credit Party is
converted at the available rate of exchange into the Contractual
Currency.
|
||
|
In
this Clause 16.5, the “available rate of
exchange” means the rate at which the Credit Party concerned is
able at the opening of business (London time) on the Business Day after it
receives the sum concerned to purchase the Contractual Currency with the
Payment Currency.
|
||
|
This
Clause 16.5 creates a separate liability of the Borrower which is distinct
from its other liabilities under the Finance Documents and which shall not
be merged in any judgment or order relating to those other
liabilities.
|
||
|
16.6
|
Increased
costs.
|
|
|
(a)
|
Except
as to taxes, levies, imposts, deductions, charges, withholdings or
liabilities with respect thereto (it being understood that the Borrower
shall not have any liability for any taxes, levies, imposts, deductions,
charges, withholdings or liabilities with respect thereto, except as
provided in Clauses 15.4, 16.1, 16.3, 16.4 or 17), if due to
either:
|
|
|
(i)
|
the
introduction of or any change in or in the interpretation of any law or
regulation; or
|
|
|
(ii)
|
the
compliance by any Lender with any guideline or request from any central
bank or other governmental authority,
|
|
|
in
any case introduced, changed, interpreted or requested after the date
hereof (whether or not having the force of law),
|
||
|
there
shall be:
|
||
|
(x)
|
imposed,
modified or deemed applicable any reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of,
any Lender; or
|
|
|
(y)
|
imposed
on any Lender any other condition relating to this Agreement or the
Advance made by it,
|
|
|
and
the result of any event referred to in clause (x) or (y) shall be to
increase the cost to such Lender of agreeing to make or making, funding or
maintaining an Advance, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent) made
within 60 days after the first date on which such Lender has actual
knowledge that it is entitled to make demand for payment under this Clause
16.6(a), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost;
provided
that:
|
||
|
(A)
|
if
such Lender fails to so notify the Borrower within such 60-day period,
such increased cost shall commence accruing on such later date on which
the Lender notifies the Borrower;
and
|
|
|
(B)
|
before
making any such demand, such Lender agrees to use its best efforts
(consistent with its internal policy and legal and regulatory
restrictions) to designate a different Lending Office if the making of
such a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender,
be otherwise disadvantageous to such Lender.
|
|
|
Any
Lender, upon determining that additional amounts sufficient to compensate
it for such increased cost are payable by the Borrower pursuant to this
Clause 16.6(a), will give prompt written notice thereof to the Borrower
and the Agent, which notice shall include a certificate submitted to the
Borrower and the Agent by such Lender setting forth in reasonable detail
the basis for and the calculation of such increased cost (such certificate
as to the amount of such increased cost, submitted to the Borrower and the
Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error), although the failure to give any such notice shall
not release or diminish the Borrower’s obligation to pay such increased
cost pursuant to this Clause 16.6(a).
|
||
|
(b)
|
If
a Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental or
monetary authority in regard to capital adequacy (whether or not having
the force of law) including, without limitation, any guideline
contemplated by the report dated July 1988 entitled “International
Convergence of Capital Management and Capital Standards” issued by the
Bank Committee on Banking Regulations and Supervisory Practices, in any
case in which such law, regulation, guideline or request became effective
or was made after the date hereof, has or would have the effect of
reducing the rate of return on the capital of, or maintained by, such
Lender or any company controlling such Lender as a consequence of such
Lender making its Ratable Portion of any Advance or Commitment hereunder
and other commitments of this type, by increasing the amount of capital
required or expected to be maintained by such Lender or any company
controlling such Lender, to a level below that which such Lender or any
company controlling such Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into account such Lender’s or
such company’s policies with respect to capital adequacy) then the
Borrower shall, from time to time, pay such Lender, upon demand by such
Lender made within 60 days after the first date on which such Lender has
actual knowledge that it is entitled to make demand for payment under this
Clause 16.6(b) of such reduction in return, such additional amount as may
be specified by such Lender as being sufficient to compensate such Lender
for such reduction in return, to the extent that such Lender reasonably
determines such reduction to be attributable to the existence of such
Lender’s commitment to lend hereunder; provided that if such
Lender fails to so notify the Borrower within such 60-day period, such
amounts shall commence accruing on such later date on which such Lender
notifies the Borrower. A certificate submitted to the Borrower
and the Agent by such Lender setting forth in reasonable detail the basis
for and the calculation of such additional amount shall be conclusive and
binding for all purposes, absent manifest error.
|
|
|
17
|
NO
SET-OFF OR TAX DEDUCTION
|
|
|
17.1
|
No
deductions. All amounts due from an Obligor under a
Finance Document shall be paid:
|
|
|
(a)
|
without
any form of set-off, cross-claim or condition; and
|
|
|
(b)
|
free
and clear of any tax deduction except a tax deduction which such Obligor
is required by law to make.
|
|
17.2
|
Grossing-up for
taxes. If an Obligor is required by law to make a tax
deduction from any payment:
|
|
(a)
|
that
Obligor shall notify the Agent as soon as it becomes aware of the
requirement;
|
|
(b)
|
that
Obligor shall pay the tax deducted to the appropriate taxation authority
promptly, and in any event before any fine or penalty
arises;
|
|
(c)
|
the
amount due in respect of the payment shall be increased by the amount
necessary to ensure that each of the Lenders receives and retains (free
from any liability relating to the tax deduction) a net amount which,
after the tax deduction, is equal to the full amount which it would
otherwise have received.
|
|
17.3
|
Evidence of payment of
taxes. Within 30 days after making any tax deduction, an
Obligor shall deliver to the Agent documentary evidence satisfactory to
the Agent that the tax had been paid to the appropriate taxation
authority.
|
|
17.4
|
Exclusion of tax on overall net
income. In this Clause 17 “tax deduction” means
any deduction or withholding for or on account of any present or future
tax except tax on a Lender’s overall net income imposed by a taxing
jurisdiction in which such Lender is organized, holds or books the Loan or
has a principal place of business.
|
|
18
|
ILLEGALITY,
ETC
|
|
18.1
|
Illegality. This
Clause 18 applies if a Lender notifies the Borrower that it has become, or
will with effect from a specified date, become:
|
|
(a)
|
unlawful
or prohibited as a result of the introduction of a new law, an amendment
to an existing law or a change in the manner in which an existing law is
or will be interpreted or applied; or
|
|
(b)
|
contrary
to, or inconsistent with, any regulation,
|
|
for
such Lender to maintain or give effect to any of its obligations under
this Agreement in the manner contemplated by this
Agreement.
|
|
|
18.2
|
Notification and effect of
illegality. On a Lender notifying the Borrower under
Clause 18.1, such Lender’s obligation to make available its Commitment
shall terminate; and thereupon or, if later, on the date specified in such
Lender’s notice under Clause 18.1 as the date on which the notified event
would become effective, the Borrower shall prepay to such Lender that
portion of the Loan then due and payable to such Lender plus all amounts
otherwise payable under Clause 7.
|
|
19
|
ASSIGNMENTS
AND PARTICIPATIONS; CHANGES IN LENDING OFFICE
|
|
19.1
|
Assignment by Borrower or
Guarantors. Except as permitted by Clause 10.2(b),
neither the Borrower or any of the Guarantors may, without the consent of
the Lenders (such consent not to be unreasonably
withheld):
|
|
(a)
|
transfer
any of its rights or obligations under any Finance Document;
or
|
|
(b)
|
enter
into any merger, de-merger or other reorganization, or carry out any other
act, as a result of which any of its rights or liabilities under any
Finance Document would vest in, or pass to, another
person.
|
|
|
19.2
|
Assignments by Lender;
Participations.
|
|
|
(a)
|
Each
Lender may at its own expense and without the consent of the Borrower
assign to a bank or other entity all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or the Advance(s) owing to it and the Notes held
by it (if any)), provided
that:
|
|
|
(i)
|
each
such assignment shall be of a uniform, and not a varying, percentage of
all rights and obligations under this Agreement;
|
|
|
(ii)
|
the
amount of the Commitment of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 and shall be an integral multiple of $1,000,000 in excess
thereof, or shall be an assignment to another Lender or an assignment of
all of the assigning Lender’s rights and obligations hereunder and under
the Notes held by such Lender;
|
|
|
(iii)
|
each
such assignment shall be to (x) another Lender or a financial Affiliate of
the assigning Lender or (y) to an Eligible Assignee;
|
|
|
(v)
|
at
the time of such assignment, no such assignment shall, without the consent
of the Borrower, result in increased liability to the Borrower under this
Agreement; and
|
|
|
(v)
|
the
parties to each such assignment shall execute and deliver to the Agent,
for its acceptance and recording in the Register, an Assignment and
Acceptance, together with the Notes (if any) subject to such assignment
and a processing and recordation fee of $3,000 from the
assignee.
|
|
|
Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
further obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
|
||
|
(b)
|
By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows:
|
|
|
(i)
|
other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant
hereto;
|
|
|
(ii)
|
such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Obligor or
the performance or observance by any Obligor of any of their obligations
under this Agreement, any other Finance Document or any other instrument
or document furnished pursuant hereto or thereto;
|
|
|
(iii)
|
such
assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Clauses 9.9 and
10.1(f) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance;
|
|
|
(iv)
|
such
assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this
Agreement;
|
|
|
(v)
|
such
assignee confirms that it is an Eligible Assignee or another Lender or a
financial Affiliate of the assigning Lender;
|
|
|
(vi)
|
such
assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers as
are reasonably incidental thereto;
|
|
|
(vii)
|
such
assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender; and
|
|
|
(viii)
|
such
assigning Lender and such assignee represent and warrant that such
assignment is not in violation of any applicable laws, including
securities laws.
|
|
|
(c)
|
The
Agent shall maintain at its address referred to in Clause 21.2 a copy of
each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each
Lender from time to time (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent, and the Lenders may
treat each person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior
notice.
|
|
|
(d)
|
Upon
its receipt of an Assignment and Acceptance executed by an assigning
Lender and an assignee, the Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Schedule 4 hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the Borrower.
|
|
|
(e)
|
Each
Lender may, at is own expense, without the Borrower’s consent, sell
participations to one or more banks or other entities in or to all or a
portion of its rights and obligations under this Agreement (including
without limitation, all or a portion of its Commitment and the Advance(s)
owing to it); provided
that:
|
|
|
(i)
|
such
Lender’s obligations under this Agreement (including, without limitation,
its Commitment to the Borrower hereunder) shall remain
unchanged;
|
|
|
(ii)
|
such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations;
|
|
|
(iii)
|
such
Lender shall remain the Lender for all purposes of this
Agreement;
|
|
|
(iv)
|
the
Borrower, the Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement; and
|
|
|
(v)
|
no
participant under any such participation shall have any right to approve
any amendment or waiver of any provision of any Finance Document, or any
consent to any departure by an Obligor therefrom.
|
|
|
(f)
|
Notwithstanding
any other provision set forth in this Agreement, any Lender may, at its
own expense, at any time create a security interest in all or any portion
of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of
the Federal Reserve System.
|
|
|
19.3
|
Rights of
assignee. In respect of any breach of a warranty,
undertaking, condition or other provision of a Finance Document, or any
misrepresentation made in or in connection with a Finance Document, a
direct or indirect assignee of any of a Lender’s rights or interests under
or by virtue of the Finance Documents shall be entitled to recover damages
by reference to the loss incurred by that assignee as a result of the
breach or misrepresentation irrespective of whether the Lender would have
incurred a loss of that kind or amount.
|
|
|
19.4
|
Subrogation
assignment. A Lender may assign, in any manner and on
terms agreed by it, all or any part of those rights to an insurer or
surety who has become subrogated to them.
|
|
|
19.5
|
Disclosure of
information. The Lenders may disclose to a potential
assignee or sub-participant any information which the Lenders have
received in relation to the Obligors or their respective affairs under or
in connection with any Finance Document, provided that if the
information is clearly of a confidential nature the potential assignee or
sub-participant shall enter into a confidentiality
agreement.
|
|
|
19.6
|
Change of Lending
Office. Except as otherwise permitted under Clause 16.6,
a Lender may change its Lending Office by giving notice to the Borrower
and the change shall become effective on the later of:
|
|
|
(a)
|
the
date on which the Borrower receives the notice; and
|
|
|
(b)
|
the
date, if any, specified in the notice as the date on which the change will
come into effect;
|
|
|
provided that such
change in Lending Office does not increase the Borrower’s costs under this
Agreement.
|
||
|
20
|
VARIATIONS
AND WAIVERS
|
|
|
20.1
|
Variations, waivers
etc.
|
|
|
(a)
|
A
document shall be effective to vary, waive, suspend or limit any provision
of a Finance Document, or a Credit Party’s rights or remedies under such a
provision or the general law, only if the document is signed, or
specifically agreed to by fax, by the relevant Obligor(s) and the relevant
Credit Party.
|
|
|
(b)
|
Except
as otherwise provided in this Agreement, this Agreement or any term hereof
may be amended, modified, waived, discharged or terminated only by an
instrument in writing, signed by the Majority Lenders or by the Agent
acting with the consent of the Majority Lenders.
|
|
|
(c)
|
Notwithstanding
the provisions of Clause 20.1(b), no amendment, modification or waiver
shall, unless by an instrument signed by all the Lenders or by the Agent
acting with the consent of all the Lenders (so long as this Agreement
remains in effect or there are any Designated Transactions
continuing):
|
|
|
(i)
|
increase
the Commitment of any Lender, or increase or extend the term, or extend
the time or waive any requirement for the reduction or termination, of any
Advance;
|
|
|
(ii)
|
extend
the date fixed for the payment of principal or interest of any
Advance;
|
|
|
(iii)
|
reduce
the amount of any payment of principal in respect of any Advance or the
rate at which interest is payable thereon or any fee is payable
hereunder;
|
|
|
(iv)
|
alter
the terms of this Clause 20;
|
|
|
(v)
|
release
any Collateral, except as contemplated in this Agreement or by a Finance
Document; or
|
|
|
(vi)
|
change
the definition of the term “Majority Lenders”;
|
|
|
provided that (x) any
amendment of Clause 26 shall require the written consent of the Agent and
the Security Trustee and (y) the Borrower shall have the right
to replace any Lender that refuses to consent to any amendments,
modifications or waivers requested by the Borrower under this Clause
20.1(c) and approved by the Majority Lenders with an Eligible Assignee
(and in such case the Agent may execute an Assignment and Acceptance on
behalf of a Lender which is being so replaced by an Eligible
Assignee).
|
||
|
20.2
|
Exclusion of other or implied
variations. Except for a document which satisfies the
requirements of Clause 20.1, no document, and no act, course of conduct,
failure or neglect to act, delay or acquiescence on the part of a Credit
Party (or any person acting on its behalf) shall result in such Credit
Party (or any person acting on its behalf) being taken to have varied,
waived, suspended or limited, or being precluded (permanently or
temporarily) from enforcing, relying on or exercising:
|
|
|
(a)
|
a
provision of this Agreement or another Finance Document;
or
|
|
|
(b)
|
an
Event of Default or Potential Event of Default; or
|
||
|
(c)
|
a
breach by an Obligor of an obligation under a Finance Document or the
general law; or
|
||
|
(d)
|
any
right or remedy conferred by any Finance Document or by the general
law;
|
||
|
and
there shall not be implied into any Finance Document any term or condition
requiring any such provision to be enforced, or such right or remedy to be
exercised, within a certain or reasonable time.
|
|||
|
21
|
NOTICES
|
||
|
21.1
|
General. Unless
otherwise specifically provided, any notice under or in connection with
any Finance Document shall be given by personal delivery or by registered
mail (with a copy by facsimile transmission or email sent the same day) or
by facsimile transmission; and references in the Finance Documents to
written notices, notices in writing and notices signed by particular
persons shall be construed accordingly.
|
||
|
21.2
|
Addresses for
communications. A notice shall be
sent:
|
||
|
(a)
|
to
the Borrower or any Guarantor:
|
Omega
Xxxxxxxx
|
|
|
00
Xxxxxxxxx Xxxxxx
|
|||
|
000
00 Xxxxxxxx
|
|||
|
Xxxxxx,
Xxxxxx
|
|||
|
Attention:
Chief Financial Officer
|
|||
|
Fax
No.: x00-000-000-0000
|
|||
|
with
a copy to:
|
|||
|
Xxxxxx
& Xxxxxx LLP
|
|||
|
Xxx
Xxxxxxx Xxxx
|
|||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|||
|
Attention:
Xxxx Xxxxx, Esq.
|
|||
|
Fax
No.: x000-000-0000
|
|||
|
(b)
|
to
the Agent or the Security Trustee:
|
Nordea
Bank Finland PLC, New York Branch
|
|
|
000
Xxxxxxx Xxxxxx
|
|||
|
Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Loan Administration
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Fax
No.: x000-000-0000
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(c)
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to
any Lender:
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at
its address listed on Schedule 1 hereto,
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or
to such other address or addresses as each party may notify the
other.
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21.3
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Effective date of
notices. Subject to Clauses 21.4 and
21.5:
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(a)
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a
notice which is delivered personally shall be deemed to be served, and
shall take effect, at the time when it is delivered;
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(b)
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a
notice which is sent by post shall be deemed to be served, and shall take
effect, three (3) days after the date of posting; and
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(c)
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a
notice which is sent by facsimile transmission shall be deemed to be
served, and shall take effect, two (2) hours after its successful
transmission is completed.
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21.4
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Service outside business
hours. However, if under Clause 21.3 a notice would be
deemed to be served:
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(a)
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on
a day which is not a Business Day in the place of receipt;
or
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(b)
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on
such a Business Day, but after 5:00 p.m. local time;
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the
notice shall (subject to Clause 21.5) be deemed to be served, and shall
take effect, at 9:00 a.m. on the next day which is such a Business
Day.
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21.5
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Illegible
notices. Clauses 21.3 and 21.4 do not apply if the
recipient of a notice notifies the sender within one (1) hour after the
time at which the notice would otherwise be deemed to be served that the
notice has been received in a form which is illegible in a material
respect.
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21.6
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Valid
notices. A notice under or in connection with a Finance
Document shall not be invalid by reason that its contents or the manner of
serving it do not comply with the requirements of this Agreement or, where
appropriate, any other Finance Document under which it is served
if:
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(a)
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the
failure to serve it in accordance with the requirements of this Agreement
or other Finance Document, as the case may be, has not caused any party to
suffer any significant loss or prejudice; or
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(b)
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in
the case of incorrect and/or incomplete contents, it should have been
reasonably clear to the party on which the notice was served what the
correct or missing particulars should have been.
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21.7
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English
language. Any notice under or in connection with a
Finance Document shall be in English.
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21.8
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Meaning of
“notice”. In this Clause “notice” includes any demand,
consent, authorization, approval, instruction, waiver or other
communication.
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22
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POSITION
OF THE LENDERS AND THE SWAP BANK
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22.1
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Interests of Credit Parties
several. The rights of the Credit Parties under this
Agreement are several.
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22.2
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Individual Credit Parties’
right of action. Each Lender and the Swap Bank shall be
entitled to xxx for any amount which has become due and payable by the
Borrower to it under this Agreement, the Master Agreement or any other
Finance Document without joining the Agent, the Security Trustee or any
other Credit Party as additional parties in the proceedings, provided that neither
the Swap Bank nor any Lender may commence proceedings against the Borrower
or any other Obligor in connection with a Finance Document without the
prior consent of the Majority Lenders.
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22.3
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Obligations of Credit Parties
several. The obligations of the Lenders and the Swap
Bank under this Agreement are several, and a failure of a Lender or the
Swap Bank to perform its obligations under this Agreement shall not result
in:
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(a)
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the
obligations of the other Lenders or the Swap Bank being increased;
or
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(b)
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the
Borrower, any other Obligor, any other Lender or the Swap Bank being
discharged (in whole or in part) from its obligations under any Finance
Document;
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and
in no circumstances shall a Lender or the Swap Bank have any
responsibility for a failure of another Lender or the Swap Bank (as the
case may be) to perform its obligations under this
Agreement.
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22.4
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Swap
Subordination. At all times during the Security Period,
the Swap Bank agrees that its rights under the Master Agreement
(including, without limitation, any right of repayment) shall be subject
and subordinate to the rights of the Lenders under this Agreement and the
other Finance Documents.
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23
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SUPPLEMENTAL;
SUBORDINATION OF OBLIGORS
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23.1
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Rights cumulative,
non-exclusive. The rights and remedies which the Finance
Documents give to the Credit Parties:
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(a)
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are
cumulative;
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(b)
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may
be exercised as often as appears expedient; and
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(c)
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shall
not, unless a Finance Document explicitly and specifically states so, be
taken to exclude or limit any right or remedy conferred by any
law.
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23.2
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Severability of
provisions. If any provision of a Finance Document is or
subsequently becomes void, unenforceable or illegal, that shall not affect
the validity, enforceability or legality of the other provisions of that
Finance Document or of the provisions of any other Finance
Document.
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23.3
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Counterparts. This
Agreement and any other Finance Document may be executed in any number of
counterparts.
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23.4
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Binding
Effect. This Agreement shall become effective on the
Effective Date and thereafter shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein except as provided in Clause
19.1.
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23.5
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Subordination of
Obligors. Subject to Clause 23.6, during the Security
Period, no Obligor shall:
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(a)
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claim
by way of any legal or administrative action any amount which may be due
to it from another Obligor whether in respect of a payment made, or matter
arising out of, this Agreement or the other Finance Documents, or any
matter unconnected with this Agreement or the other Finance Documents;
or
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(b)
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take
or enforce any form of security from another Obligor for such an amount,
or in any other way seek to have recourse in respect of such an amount
against any asset of another Obligor; or
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(c)
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set
off such an amount against any sum due from it to another Obligor;
or
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(d)
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prove
or claim for such an amount in any liquidation, administration,
arrangement or similar procedure involving another Obligor;
or
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(e)
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exercise
or assert any combination of the foregoing.
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23.6
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Required
action. If during the Security Period, the Agent, by
notice to an Obligor, requires it to take any action referred to in
paragraphs (a) to (d) of Clause 23.5, in relation to any other Obligor,
that Obligor shall take that action as soon as practicable after receiving
the Agent’s notice.
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24
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UPSIZE
OPTION
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24.1
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Upsize
option. Subject to the following conditions, from time to time during the period
between the Effective Date and September 18, 2010 the Borrower may by
notice to the Agent, without the consent of the Lenders, increase the
available Commitments in respect of the Tranche B Loan by
either:
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(a)
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causing one or more banks or
financial institutions to become a Lender hereunder (with all the rights
and obligations of a Lender attendant thereto) in respect of the Tranche B
Loan (in which case such bank or financial institution shall execute such
agreement as the Agent shall deem appropriate to cause such bank or
financial institution to accede to the rights and obligations of a Lender
hereunder); or
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(b)
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agreeing with one or more Lenders,
in each such Lender’s sole discretion, to increase such Lender’s
Commitment in respect of the Tranche B Loan.
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24.2
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Limitations on
upsize option. The conditions
referred to in Clause 24.1 are that:
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(a)
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the
aggregate of all increases of the available Commitments in
respect of the Tranche B Loan shall not exceed
$50,000,000;
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(b)
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no
new Commitment (in the case of a new Lender) and no increased Commitment
(in the case of an existing Lender) shall be less than $10,000,000
(measured individually);
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(c)
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the
Borrower and/or the Guarantors shall provide such additional Collateral as
may be acceptable to the Agent in its sole reasonable discretion (acting
upon the instruction of the Majority Lenders) in an amount not less than
200% of each Commitment increase; and
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(d)
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the
Obligors and the Credit Parties (including any new Lender) shall execute
and deliver an amendment, or an amendment and restatement, of this
Agreement and such others of the Finance Documents as the Majority Lenders
shall deem appropriate, any such amendment or amendment and restatement to
be in form and substance satisfactory to the Majority
Lenders.
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25
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EFFECTIVENESS
OF THIS AGREEMENT
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25.1
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Conditions precedent to
effectiveness. The amendment and restatement of the
Original Loan Agreement pursuant hereto shall become effective on and as
of the first date (the “Effective Date”) on
which all of the following conditions shall have been
satisfied:
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(a)
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The
Agent shall have received:
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(i)
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an
original of this Agreement duly executed by the parties
hereto;
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(ii)
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in
respect of each Obligor, documents of the kind specified in Schedule 3,
Part A, paragraphs 2, 3, 4, 5 and 6, updated with appropriate
modifications, each to be in form and substance satisfactory to the
Agent;
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(iii)
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a
duly executed original of an addendum to the Mortgage in respect of each
of the Xxxxxxxx Islands registered AUGUSTA, HELENA, LANSING, PIERRE and
RICHMOND, each such addendum to be in form and substance satisfactory to
the Agent;
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(iv)
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a
duly executed original of each Second Statutory Mortgage in respect of
each of the Cypriot registered AUSTIN and TRENTON, each such Second
Statutory Mortgage to be in form and substance satisfactory to the
Agent;
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(v)
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documentary
evidence that the relevant Mortgage addendum has been duly recorded
according to the laws of the Republic of The Xxxxxxxx Islands against each
of the AUGUSTA, HELENA, LANSING, PIERRE and RICHMOND;
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(vi)
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documentary
evidence that the relevant Second Statutory Mortgage has been duly
recorded according to the laws of the Republic of Cyprus against each of
the AUSTIN and TRENTON;
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(vii)
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any
consents, agreements and other documents in connection with this Agreement
and the Finance Documents which the Agent may request by notice to the
Obligors prior to the Effective Date, including, without limitation, a
certificate of the president or secretary of each Intermediate Holding
Company dated the date of this Agreement:
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(1)
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as
to (a) there being no amendments to its constitutional documents since the
date such documents were delivered previously to the Agent, (b) the
absence of any proceedings for the dissolution or liquidation of such
party, (c) the veracity of the representations and warranties contained in
the Share Pledge made by such party, (d) the absence of any material
misstatement of fact in any information provided by such party to the
Agent and that such information did not omit to state any material fact
necessary to make statements therein, in light of the circumstances under
which they were made, not misleading, and (e) the absence of a Potential
Event of Default or an Event of Default; and
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(2)
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acknowledging
this Agreement and confirming that such party’s Share Pledge remains in
full force and effect;
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(viii)
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a
favorable opinion of Xxxxxx & Xxxxxx LLP, special New York, Xxxxxxxx
Islands and Liberian counsel to the Obligors, in form, scope and substance
satisfactory to the Credit Parties; and
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(ix)
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a
favorable opinion of each of special Cypriot and Maltese counsel to the
Credit Parties, in form, scope and substance satisfactory to the Credit
Parties.
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(b)
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No
Event of Default or Potential Event of Default shall have occurred and be
continuing and there shall have been no material adverse change in the
financial condition, operations or business prospects of the Obligors
since the date of the Original Loan Agreement.
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25.2
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Amendment and Restatement of
Original Loan Agreement. With effect on and from the
Effective Date, the Original Loan Agreement shall be, and shall be deemed
by this Agreement to have been, amended and restated upon the terms and
conditions stated herein and, as so amended and restated, the Original
Loan Agreement shall continue to be binding on each of the parties to it
in accordance with its terms as so amended and
restated.
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25.3
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Amendments to Finance
Documents. With effect on and from the Effective Date
each of the Finance Documents (other than this Agreement and any Second
Statutory Mortgage) shall be, and shall be deemed by this Agreement to
have been, amended as follows:
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(a)
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the
definition of, and references throughout each of the Finance Documents to,
the Loan Agreement and any of the other Finance Documents shall be
construed as if the same referred to the Loan Agreement and those Finance
Documents as amended and restated or supplemented by this Agreement;
and
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(b)
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by
construing references throughout each of the Finance Documents to “this
Agreement”, “hereunder” and other like expressions as if the same referred
to such Finance Documents as amended and supplemented by this
Agreement.
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25.4
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Finance Documents to remain in
full force and effect. Except as amended hereby, all
terms and conditions of each of the Finance Documents shall remain in full
force and effect and are hereby ratified and confirmed in all
respects. Without limiting the foregoing, each of the
Guarantors acknowledges and agrees that the Guarantee remains in full
force and effect.
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26
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THE
AGENT AND THE SECURITY TRUSTEE
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26.1
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Appointment and
Granting.
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(a)
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The
Agent. Each Lender irrevocably appoints and authorizes
the Agent to act as its agent hereunder and under any of the other Finance
Documents with such powers as are specifically delegated to the Agent by
the terms of this Agreement and of any of the other Finance Documents,
together with such other powers as are reasonably incidental
thereto.
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(b)
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The Security
Trustee.
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(i)
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Authorization of Security
Trustee. Each of the Lenders, the Swap Bank and the
Agent irrevocably appoints and authorizes the Security Trustee to act as
security trustee hereunder and under the other Finance Documents (other
than the Notes) with such powers as are specifically delegated to the
Security Trustee by the terms of this Agreement and such other Finance
Documents, together with such other powers as are reasonably incidental
thereto.
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(ii)
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Granting
Clause. To secure the payment of all sums of money from
time to time owing to the Lenders or the Swap Bank under this Agreement,
the Notes and the other Finance Documents in the maximum principal amount
of $409,500,000 plus accrued interest thereon and all other amounts owing
to the Lenders, the Swap Bank the Agent or the Security Trustee pursuant
to this Agreement, the Notes and the other Finance Documents, and the
performance of the covenants of the Borrower and any other Obligor herein
and therein contained, and in consideration of the premises and of the
covenants herein contained and of the extensions of credit by the Lenders,
the Security Trustee does hereby declare that it will hold as such trustee
in trust for the benefit of the Lenders, the Swap Bank and the Agent, from
and after the execution and delivery thereof, all of its right, title and
interest as mortgagee in, to and under each Mortgage and its right, title
and interest as assignee and secured party under the other Finance
Documents (the right, title and interest of the Security Trustee in and to
the property, rights and privileges described above, from and after the
execution and delivery thereof, and all property hereafter specifically
subjected to the lien of the indenture created hereby and by the Finance
Documents by any amendment hereto or thereto are herein collectively
called the “Estate”); TO HAVE AND TO
HOLD the Estate unto the Security Trustee and its successors and assigns
forever BUT IN TRUST, NEVERTHELESS, for the equal and proportionate
benefit and security of the Lenders, the Swap Bank and the Agent and their
respective successors and assigns without any priority of any one over any
other (except as provided in Clause 13.1 of this Agreement), UPON THE
CONDITION that, unless and until an Event of Default under this Agreement
shall have occurred and be continuing, each of the Obligors shall be
permitted, to the exclusion of the Security Trustee, to possess and use
the Ships. IT IS HEREBY COVENANTED, DECLARED AND AGREED that
all property subject or to become subject hereto is to be held, subject to
the further covenants, conditions, uses and trusts hereinafter set forth,
and each Obligor, for itself and its respective successors and assigns,
hereby covenants and agrees to and with the Security Trustee and its
successors in said trust, for the equal and proportionate benefit and
security of the Lenders, the Swap Bank and the Agent as hereinafter set
forth.
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(iii)
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Acceptance of
Trusts. The Security Trustee hereby accepts the trusts
imposed upon it as Security Trustee by this Agreement, and the Security
Trustee covenants and agrees to perform the same as herein expressed and
agrees to receive and disburse all monies constituting part of the Estate
in accordance with the terms hereof.
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26.2
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Scope of
Duties. Neither the Agent nor the Security Trustee
(which terms as used in this sentence and in Clause 26.5 hereof shall
include reference to their respective affiliates and their own respective
and their respective affiliates’ officers, directors, employees, agents
and attorneys-in-fact):
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(a)
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shall
have any duties or responsibilities except those expressly set forth in
this Agreement and in any of the Finance Documents, and shall not by
reason of this Agreement or any of the Finance Documents be (except, with
respect to the Security Trustee, as specifically stated to the contrary in
this Agreement) a trustee for a Lender or the Swap
Bank;
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(b)
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shall
be responsible to the Lenders or the Swap Bank for any recitals,
statements, representations or warranties contained in this Agreement or
in any of the Finance Documents, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any of the Finance Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the Finance Documents or any other document referred
to or provided for herein or therein or for any failure by any Obligor or
any other person to perform any of its obligations hereunder or thereunder
or for the location, condition or value of any property covered by any
lien under any of the Finance Documents or for the creation, perfection or
priority of any such lien;
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(c)
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shall
be required to initiate or conduct any litigation or collection
proceedings hereunder or under any of the Finance Documents unless
expressly instructed to do so in writing by the Majority Lenders;
or
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(d)
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shall
be responsible for any action taken or omitted to be taken by it hereunder
or under any of the Finance Documents or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. Each of the Security Trustee and the Agent may
employ agents and attorneys-in-fact and neither the Security Trustee nor
the Agent shall be responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it in good
faith. Each of the Security Trustee and the Agent may deem and
treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent, together with the written consent of
the Borrower to such assignment or transfer.
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26.3
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Reliance. Each
of the Security Trustee and the Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telefacsimile, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper person or persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Security Trustee
or the Agent, as the case may be. As to any matters not
expressly provided for by this Agreement or any of the Finance Documents,
each of the Security Trustee and the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder or thereunder
in accordance with instructions signed by the Majority Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders.
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26.4
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Knowledge. Neither
the Security Trustee nor the Agent shall be deemed to have knowledge or
notice of the occurrence of a Potential Event of Default or Event of
Default (other than, in the case of the Agent, the non-payment of
principal of or interest on the Loan or any Advance) unless each of the
Security Trustee and the Agent has received notice from a Lender or any
Obligor specifying such Potential Event of Default or Event of Default and
stating that such notice is a “Notice of Default”. If the Agent
receives such a notice of the occurrence of such Potential Event of
Default or Event of Default, the Agent shall give prompt notice thereof to
the Security Trustee and the Lenders (and shall give each Lender prompt
notice of each such non-payment). Subject to Clause 26.8
hereof, the Security Trustee and the Agent shall take such action with
respect to such Potential Event of Default or Event of Default or other
event as shall be directed by the Majority Lenders, except that, unless
and until the Security Trustee and the Agent shall have received such
directions, each of the Security Trustee and the Agent may (but shall not
be obligated to) take such action, or refrain from taking such action,
with respect to such Potential Event of Default or Event of Default or
other event as it shall deem advisable in the best interest of the Lenders
and the Swap Bank.
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26.5
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Security Trustee and Agent as
Lenders. Each of the Security Trustee and the Agent (and
any successor acting as Security Trustee or Agent, as the case may be) in
its individual capacity as a Lender hereunder shall have the same rights
and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Security Trustee or the Agent, as the
case may be, and the term “Lender” or “Lenders” shall, unless the context
otherwise indicates, include each of the Security Trustee and the Agent in
their respective individual capacities. Each of the Security
Trustee and the Agent (and any successor acting as Security Trustee and
Agent, as the case may be) and their respective affiliates may (without
having to account therefor to a Lender) accept deposits from, lend money
to and generally engage in any kind of banking, trust or other business
with any Obligor and any of its subsidiaries or affiliates as if it were
not acting as the Security Trustee or the Agent, as the case may be, and
each of the Security Trustee and the Agent and their respective affiliates
may accept fees and other consideration from such Obligor for services in
connection with this Agreement or otherwise without having to account for
the same to the Lenders.
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26.6
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Indemnification of Security
Trustee and Agent. The Lenders agree to indemnify each
of the Agent and the Security Trustee (to the extent not reimbursed under
other provisions of this Agreement, but without limiting the obligations
of any Obligor under said other provisions, ratably in accordance with the
aggregate principal amount of each Lenders’ participation in the Loan),
for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
and nature whatsoever which may be imposed on, incurred by or asserted
against the Security Trustee or the Agent in any way relating to or
arising out of this Agreement or any of the Finance Documents or any other
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby (including, without limitation, the costs
and expenses which an Obligor is to pay hereunder, but excluding, unless
an Event of Default has occurred and is continuing, normal administrative
costs and expenses incident to the performance of their respective agency
duties hereunder) or the enforcement of any of the terms hereof or thereof
or of any such other documents, except that no Lender shall be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
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26.7
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Reliance on Security Trustee or
Agent. Each Lender and the Swap Bank agrees that it has,
independently and without reliance on the Security Trustee, the Agent or
any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Obligors and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Security Trustee, the Agent or any other Lender,
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or
not taking action under this Agreement or any of the Finance
Documents. None of the Security Trustee or the Agent shall be
required to keep itself informed as to the performance or observance by
any of the Obligors of its obligations under this Agreement or any of the
Finance Documents or any other document referred to or provided for herein
or therein or to inspect the properties or books of the
Obligors. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders and/or the
Swap Bank by the Security Trustee or the Agent hereunder, neither the
Security Trustee nor the Agent shall have any duty or responsibility to
provide a Lender with any credit or other information concerning the
affairs, financial condition or business of any of the Obligors or any of
their respective parents, subsidiaries or Affiliates which may come into
the possession of the Security Trustee, the Agent or any of their
respective Affiliates.
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26.8
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Actions by Security Trustee and
Agent. Except for action expressly required of the
Security Trustee or the Agent hereunder and under the other Finance
Documents, each of the Security Trustee and the Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Clause 26.5 hereof
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
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26.9
|
Resignation and
Removal. Subject to the appointment and acceptance of a
successor Security Trustee or Agent (as the case may be) as provided
below, each of the Security Trustee and the Agent may resign at any time
by giving notice thereof to the Lenders, the Swap Bank and the Obligors,
and the Security Trustee or the Agent may be removed at any time with or
without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to
appoint a successor Security Trustee or Agent, as the case may be, which
shall be a Lender, or a Lender with an Affiliate, which has an office in
New York, New York. If no successor Security Trustee or Agent,
as the case may be, shall have been so appointed by the Lenders or, if
appointed, shall not have accepted such appointment within 30 days after
the retiring Security Trustee’s or Agent’s, as the case may be, giving of
notice of resignation or the Majority Lenders’ removal of the retiring
Security Trustee or Agent, as the case may be, then the retiring Security
Trustee or Agent, as the case may be, may, on behalf of the Lenders,
appoint a successor Security Trustee or Agent, as the case may be, which
shall be a Lender, or a Lender with an Affiliate, which has an office in
New York, New York. Upon the acceptance of any appointment as
Security Trustee or Agent hereunder by a successor Security Trustee or
Agent, such successor Security Trustee or Agent, as the case may be, shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Security Trustee or Agent, as the
case may be, and the retiring Security Trustee or Agent shall be
discharged from its duties and obligations hereunder. After any
retiring Security Trustee or Agent’s resignation or removal hereunder as
Security Trustee or Agent, as the case may be, the provisions of this
Clause 26 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Security Trustee or the Agent, as the case may be.
|
|
26.10
|
Release of
Collateral. Without the prior written consent of all of
the Lenders and the Swap Bank, neither the Security Trustee nor the Agent
will consent to any modification, supplement or waiver under any of the
Finance Documents nor without the prior written consent of all of the
Lenders and the Swap Bank release any Collateral or otherwise terminate
any lien under the Finance Documents, except that no such consent is
required, and each of the Security Trustee and the Agent is authorized, to
release any lien covering property if the obligations have been paid and
performed in full or which is the subject of a disposition of property
permitted hereunder or to which the Lenders and the Swap Bank have
consented.
|
|
27
|
LAW
AND JURISDICTION
|
|
27.1
|
Governing
law. THIS AGREEMENT AND THE OTHER FINANCE DOCUMENTS
(EXCEPT THE MORTGAGES) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW
YORK.
|
|
27.2
|
Consent
to Jurisdiction.
|
|
(a)
|
The parties to this Agreement
hereby irrevocably and unconditionally submit, for themselves and their
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York
County, and any appellate court thereof, in any action or
proceeding arising out of or relating to this Agreement or any of the
other Finance Documents to which any of the parties hereto is a party or
for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in
such New York State Court or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
|
|
(b)
|
Nothing
in this Clause 27.2 shall affect the right of a Credit Party to bring any
action or proceeding against an Obligor or its property in the courts of
any other jurisdictions where such action or proceeding may be
heard.
|
|
(c)
|
The
Obligors hereby irrevocably and unconditionally waive, to the fullest
extent they may legally and effectively do so, any objection which they
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York
State or Federal court and the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court and any
immunity from jurisdiction of any court or from any legal process with
respect to themselves or their property.
|
|
(d)
|
Each
Obligor hereby agrees to appoint Xxxxxx & Xxxxxx LLP with offices
currently located at Xxx Xxxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxx, Esq., as its designated agent for service of
process for any action or proceeding arising out of or relating to this
Agreement or any other Finance Document. Each Obligor also
irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to its
address specified in Clause 21.2. The Obligors also agree that
service of process may be made on them by any other method of service
provided for under the applicable laws in effect in the State of New
York.
|
|
27.3
|
Rights
unaffected. Nothing in this Clause 27 shall exclude or
limit any right a Credit Party may have (whether under the law of any
country, an international convention or otherwise) with regard to the
bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
|
|
27.4
|
Meaning of
“proceedings”. In this Clause 27, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
|
|
28
|
WAIVER
OF JURY TRIAL
|
|
28.1
|
WAIVER. THE
OBLIGORS AND THE CREDIT PARTIES MUTUALLY AND IRREVOCABLY WAIVE ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
|
|
29
|
PATRIOT
ACT
|
|
29.1
|
PATRIOT Act
Notice. Each of the Agent, the Lenders and the Swap Bank
hereby notifies the Obligors that pursuant to the requirements of the
PATRIOT Act and the Agent’s, each Lender’s and the Swap Bank’s policies
and practices, the Agent, each of the Lenders and the Swap Bank is
required to obtain, verify and record certain information and
documentation that identifies each of the Obligors, which information
includes the name and address of each of the Obligors and such other
information that will allow the Agent, each of the Lenders and the Swap
Bank to identify each of the Obligors in accordance with the PATRIOT
Act.
|
|
|
[EXECUTION
PAGE FOLLOWS ON NEXT PAGE]
|
WHEREFORE, the parties hereto have
caused this Loan Agreement to be executed as of the date first above
written.
|
as
Borrower
By:/s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANENERGY
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
|
NORDEA
BANK NORGE ASA, acting through its Grand Cayman branch, as Lead Arranger
and Bookrunner
By:/s/Xxxxxx
Lunder_______________
Name: Xxxxxx
Xxxxxx
Title: Senior Vice
President
By: /s/ Xxxxxx Xxxx
_______________
Name: Xxxxxx
Xxxx
Title: Vice
President
|
|
OCEANRESOURCES
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANSHIP
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANSTRENGTH
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
|
NORDEA
BANK FINLAND PLC, acting through its New York branch, as Swap
Bank
By:/s/Xxxxxx
Lunder_______________
Name: Xxxxxx
Xxxxxx
Title: Senior Vice
President
By: /s/ Xxxxxx Xxxx
_______________
Name: Xxxxxx
Xxxx
Title: Vice
President
NORDEA
BANK FINLAND PLC, acting through its New York branch, as Agent and
Security Trustee
By:/s/Xxxxxx
Lunder_______________
Name: Xxxxxx
Xxxxxx
Title: Senior Vice
President
By:/s/ Xxxxxx Xxxx
_______________
Name: Xxxxxx
Xxxx
Title: Vice
President
|
|
OCEANTRADE
OWNERS LIMITED,
as
Guarantor
By:/s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANVENTURE
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANWEALTH
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
KIFISSIA
STAR OWNERS INC.,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANCLARITY
OWNERS LIMITED,
as
Guarantor
By: /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANFIGHTER
OWNERS INC.,
as
Guarantor
By:/s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
OCEANPRIME
OWNERS LIMITED,
as
Guarantor
By:/s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
BANK
OF AMERICA, N.A.
as
Lender
By: /s/Xxxxxxxxx Brand
Name: Xxxxxxxxx
X. Brand
Title:
FBB
- FIRST BUSINESS BANK S.A.,
as
Lender
By: /s/ Nikolaos
Vougioukas________
Name: Xxxxxxxx
Xxxxxxxxxx
Title: General
Shipping Manager
|
NORDEA
BANK NORGE ASA, acting through its Grand Cayman branch,
as
Lender
By:/s/ Xxxxxxx Xxxxxx
____________
Name: Xxxxxxx
Xxxxxx
Title: Vice
President
By:/s/ Xxxxxx X.
Steffensen________
Name: Xxxxxx X.
Xxxxxxxxxx
Title: Senior Vice
President
BANK
OF SCOTLAND PLC,
as
Co-Arranger
By:/s/ Xxxx Xxxxxxx ____________
Name: Xxxx
Xxxxxxx
Title: Director,
Marine Finance
BANK
OF SCOTLAND PLC,
as
Lender
By:/s/ Xxxx Xxxxxxx ____________
Name: Xxxx
Xxxxxxx
Title: Director,
Marine Finance
PIRAEUS
BANK A.E.,
as
Co-Arranger
By:/s/Xxxxx
Dallas__________________
Name: Xxxxx
Dallas
Title:
PIRAEUS
BANK A.E.,
as
Lender
By:/s/Xxxxx
Dallas__________________
Name: Xxxxx
Dallas
Title:
SKANDINAVISKA
ENSKILDA XXXXXX XX, as Co-Arranger
By:_/s/ Xxxxxx Xxx _______________
Name: Xxxxxx
Xxx
Title: Head of
Structured Finance
By: /s/ Jan
Dahlén________________
Name: Xxx
Xxxxxx
Title: Legal
Counsel
SKANDINAVISKA
ENSKILDA XXXXXX XX, as Lender
By:_/s/ Xxxxxx Xxx _______________
Name: Xxxxxx
Xxx
Title: Head of
Structured Finance
By: /s/ Jan
Dahlén________________
Name: Xxx
Xxxxxx
Title: Legal
Counsel
COMMERZBANK
AG, as Lender
By:/s/ Xxxxxxxxx Xxxxxx/Xxxxxx
Hugger____
Name: Xxxxxxxxx
Xxxxxx/Xxxxxx Xxxxxx
Title: Vice
President
DRESDNER
BANK AG IN HAMBURG,
as
Lender
By:/s/ Jürgen Palm/Sabine
Haese______
Name: Jürgen
Palm/Xxxxxx Xxxxx
Title: Managing
Director
|
SCHEDULE
1
LENDERS
AND COMMITMENTS
TRANCHE
A LOAN
|
Lender
|
Tranche A Loan
Commitment
|
|
1. Nordea
Bank Norge ASA, Grand Cayman branch
Lending Office:
x/x
Xxxxxx Xxxx Xxxxxxx, Xxx Xxxx branch
000
Xxxxxxx Xxx.
Xxx
Xxxx, XX 00000
XXX
Attention:
Loan Administration
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Notice Address:
x/x
Xxxxxx Xxxx Xxxxxxx, Xxx Xxxx branch
000
Xxxxxxx Xxx.
Xxx
Xxxx, XX 00000
XXX
Attention:
Loan Administration
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
|
$46,150,000
|
|
2. Bank
of Scotland plc
Lending Office:
Bank
of Scotland
Corporate
Marine
Finance
Xxxxxxxx
Xxxxx
0
Xxxxxxxx Xxxxxx
Xxxxxxxxx
XX00 0XX
U.K.
Notice Address (for legal
notices):
Bank
of Scotland
Corporate
Marine
Finance
Xxxxxxxx
Xxxxx
0
Xxxxxxxx Xxxxxx
Xxxxxxxxx
XX00 0XX
U.K.
Notice Address (for all other
notices):
Bank
of Scotland
Corporate
Loans
Management Support
Citymark
000
Xxxxxxxxxxxxxx
Xxxxxxxxx
XX0 0XX
U.K.
Attention:
Xxxxx XxXxxxxx
Telephone: +
00 000 000 0000
Facsimile: x00
000 000 0000
|
$30,770,000
|
|
3. Piraeus
Bank A.E.
Lending Office:
Piraeus
Bank A.E.
00-00
Xxxx Xxxxxxx
000
00 Xxxxxxx
Xxxxxx
Notice Address:
Piraeus
Bank A.E.
00-00
Xxxx Xxxxxxx
000
00 Xxxxxxx
Xxxxxx
Attention: Mrs.
Polytimi Matharicou
Telephone: x00
000 00 00 000
Facsimile: x00
000 00 00 000
|
$30,770,000
|
|
4. Skandinaviska
Enskilda Xxxxxx XX
Lending Office:
Xxxxxxxxxxxxx
Xxxxxxxx Xxxxxx XX
00000
Xxxxxxxxx
Xxxxxx
Notice Address:
Rissneleden
000
X-000
00 Xxxxxxxxx
Xxxxxx
Attention:
Xxxxxx Xxxxxxxx
Telephone: x00
(0)0 000 00 00
Facsimile:
+ 00 (0)0 000 00 00
|
$30,770,000
|
|
5. Commerzbank
AG
Lending Office:
Commerzbank
AG; Xxxxxxx
Xxxx
0-0
00000
Xxxxxxx
Xxxxxxx
Notice Address:
Commerzbank
AG; Xxxxxxx
Xxxx
0-0
00000
Xxxxxxx
Xxxxxxx
Attention: Xxxxxxxx
Xxxxxxx
Telephone: x00000000
0000
Facsimile: x00
00 0000 0000
|
$18,462,000
|
|
6. Dresdner
Bank AG in Hamburg
Lending Office:
Dresdner
Bank AG in Hamburg
Xxxxxxxxxxxxx
00
00000
Xxxxxxx
Xxxxxxx
Notice Address:
Dresdner
Bank AG in Hamburg
Xxxxxxxxxxxxx
00
00000
Xxxxxxx
Xxxxxxx
Attention: Xxxx
Xxxxx
Telephone: x00
00 0000 0000
Facsimile: x00
00 0000 0000
|
$18,462,000
|
|
7. Bank
of America, N.A.
Lending Office:
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
X.X.X.
Notice Address:
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
U.S.A.
Attention: Xxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
|
$12,308,000
|
|
8. FBB-
First Business Bank S.A.
Lending Office:
FBB
- First Business Bank S.A.
Shipping
Division
62,
Notara & Xxxxxxx Xxxx Xxxxxx
00000,
Xxxxxxx
Xxxxxx
Notice Address:
FBB
- First Business Bank S.A.
62,
Notara & Xxxxxxx Xxxx Xxxxxx
00000,
Xxxxxxx
Xxxxxx
Attention: Vassiliki
Athanassoulia
Telephone: x00
000 000 00 00
Facsimile: x00
000 000 00 00
|
$12,308,000
|
SCHEDULE
1
LENDERS
AND COMMITMENTS
TRANCHE
B LOAN
|
Lender
|
Tranche B Loan
Commitment
|
|
1. Nordea
Bank Norge ASA, Grand Cayman branch
Lending Office:
x/x
Xxxxxx Xxxx Xxxxxxx, Xxx Xxxx branch
000
Xxxxxxx Xxx.
Xxx
Xxxx, XX 00000
XXX
Attention:
Loan Administration
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Notice Address:
x/x
Xxxxxx Xxxx Xxxxxxx, Xxx Xxxx branch
000
Xxxxxxx Xxx.
Xxx
Xxxx, XX 00000
XXX
Attention:
Loan Administration
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
|
$28,850,000
|
|
2. Bank
of Scotland plc
Lending Office:
Bank
of Scotland
Corporate
Marine
Finance
Xxxxxxxx
Xxxxx
0
Xxxxxxxx Xxxxxx
Xxxxxxxxx
XX00 0XX
U.K.
Notice Address (for legal
notices):
Bank
of Scotland
Corporate
Marine
Finance
Xxxxxxxx
Xxxxx
0
Xxxxxxxx Xxxxxx
Xxxxxxxxx
XX00 0XX
U.K.
Notice Address (for all other
notices):
Bank
of Scotland
Corporate
Loans
Management Support
Citymark
000
Xxxxxxxxxxxxxx
Xxxxxxxxx
XX0 0XX
U.K.
Attention:
Xxxxx XxXxxxxx
Telephone: x00
000 000 0000
Facsimile: x00
000 000 0000
|
$19,230,000
|
|
3. Piraeus
Bank A.E.
Lending Office:
Piraeus
Bank A.E.
00-00
Xxxx Xxxxxxx
000
00 Xxxxxxx
Xxxxxx
Notice Address:
Piraeus
Bank A.E.
00-00
Xxxx Xxxxxxx
000
00 Xxxxxxx
Xxxxxx
Attention: Mrs.
Polytimi Matharicou
Telephone: x00
000 00 00 000
Facsimile: x00
000 00 00 000
|
$19,230,000
|
|
4. Skandinaviska
Enskilda Xxxxxx XX
Lending Office:
Xxxxxxxxxxxxx
Xxxxxxxx Xxxxxx XX
00000
Xxxxxxxxx
Xxxxxx
Notice Address:
Rissneleden
000
X-000
00 Xxxxxxxxx
Xxxxxx
Attention:
Xxxxxx Xxxxxxxx
Telephone: x00
(0)0 000 00 00
Facsimile: x00
(0)0 000 00 00
|
$19,230,000
|
|
5. Commerzbank
AG
Lending Office:
Commerzbank
AG; Xxxxxxx
Xxxx
0-0
00000
Xxxxxxx
Xxxxxxx
Notice Address:
Commerzbank
AG; Xxxxxxx
Xxxx
0-0
00000
Xxxxxxx
Xxxxxxx
Attention: Xxxxxxxx
Xxxxxxx
Telephone: x00
00 0000 0000
Facsimile: x00
00 0000 0000
|
$11,538,000
|
|
6. Dresdner
Bank AG in Hamburg
Lending Office:
Dresdner
Bank AG in Hamburg
Xxxxxxxxxxxxx
00
00000
Xxxxxxx
Xxxxxxx
Notice Address:
Dresdner
Bank AG in Hamburg
Xxxxxxxxxxxxx
00
00000
Xxxxxxx
Xxxxxxx
Attention: Xxxx
Xxxxx
Telephone: x00
00 0000 0000
Facsimile: x00
00 0000 0000
|
$11,538,000
|
|
7. Bank
of America, N.A.
Lending Office:
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
X.X.X.
Notice Address:
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
U.S.A.
Attention: Xxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
|
$7,692,000
|
|
8. FBB-
First Business Bank S.A.
Lending Office:
FBB
- First Business Bank S.A.
Shipping
Division
62,
Notara & Xxxxxxx Xxxx Xxxxxx
00000,
Xxxxxxx
Xxxxxx
Notice Address:
FBB
- First Business Bank S.A.
62,
Notara & Xxxxxxx Xxxx Xxxxxx
00000,
Xxxxxxx
Xxxxxx
Attention: Vassiliki
Athanassoulia
Telephone: x00
000 000 00 00
Facsimile: x00
000 000 00 00
|
$7,692,000
|
SCHEDULE
0
XXXXXXXX
XXXXXX
Xxxxxx
Xxxx Xxxxxxx XXX, Xxx Xxxx branch, as Agent
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Loan Administration
Date:
[l],
2008
|
1
|
We
refer to the amended and restated loan agreement dated as of [l], 2008 (the
“Loan Agreement”)
among ourselves, as Borrower, and the other parties named therein in
connection with a $325,000,000 Senior Secured Credit
Facility. Terms defined in the Loan Agreement have their
defined meanings when used in this Drawdown
Notice.
|
|
2
|
We
request to borrow an Advance as
follows
|
|
(a)
|
Tranche
[A] [B] Loan
|
|
(b)
|
Amount:
$[l]
|
|
(c)
|
Expected
Drawdown Date: [l]
|
|
(d)
|
Duration
of the first Interest Period shall be: [l]
month(s).
|
|
(e)
|
Use
of Proceeds:
|
|
(f)
|
Payment
instructions: [l]
|
|
3
|
We
represent and warrant that:
|
|
(a)
|
the
representations and warranties in Clause 9 of the Loan Agreement would
remain true and not misleading if repeated on the date of this notice with
reference to the circumstances now
existing;
|
|
(b)
|
no
Event of Default or Potential Event of Default has occurred or will result
from the borrowing of the Loan.
|
|
4
|
This
notice cannot be revoked without your prior
consent.
|
|
5
|
We
authorize you to deduct any balance of any fees (each referred to in
Clause 15) outstanding on the Expected Drawdown Date from the amount of
the Advance.
|
as
Borrower
By:
___________________________
Name:
Title:
SCHEDULE
3
CONDITIONS
PRECEDENT DOCUMENTS
PART
A
The
following are the documents referred to in Clause 8.1(a) that are to be
delivered on or before service of the first Drawdown Notice:
|
1.
|
A
duly executed original of:
|
|
|
(a)
|
this
Agreement;
|
|
|
(b)
|
the
Master Agreement (if being executed);
and
|
|
|
(c)
|
the
Notes.
|
|
2.
|
Copies
of the constitutional documents, and each amendment thereto, of each
Obligor and each Intermediate Holding Company, certified as of a date
reasonably near the date of the relevant Drawdown Notice by the president
or the secretary (or equivalent officer) of such Obligor or Intermediate
Holding Company as being a true and correct copy
thereof.
|
|
3.
|
Originals
or copies of certificates dated as of a date reasonably near the date of
the Drawdown Notice, certifying that each Obligor and Intermediate Holding
Company is duly incorporated (or formed) and in good standing under the
laws of such Obligor’s or Intermediate Holding Company’s jurisdiction of
incorporation (or formation).
|
|
4.
|
Copies
of resolutions of the directors (or equivalent governing body) (and where
required, the shareholders or equivalent equity holders) of each Obligor
and Intermediate Holding Company authorizing the execution of each Finance
Document to which such Obligor or Intermediate Holding Company is or is to
be a party and authorizing named officers or attorneys-in-fact to execute
such documents and give the Drawdown Notice and other notices required by
the Finance Documents, in each case certified as of a date reasonably near
the date of the Drawdown Notice by the president or the secretary (or
equivalent officer) of such Obligor or Intermediate Holding Company as
being a true and correct copy
thereof.
|
|
5.
|
The
original or a certified copy of any power of attorney under which any
Finance Document is to be executed on behalf of an Obligor or Intermediate
Holding Company.
|
|
6.
|
Copies
of all consents which any Obligor or Intermediate Holding Company requires
to enter into, or make any payment or perform any of its obligations under
or in connection with the transactions contemplated by any Finance
Document to which such Obligor or Intermediate Holding Company is to be a
party, each certified as of a date reasonably near the date of the
relevant Drawdown Notice by the president or the secretary (or equivalent
officer) of such Obligor or Intermediate Holding Company as being a true
and correct copy thereof (or certification by such president or secretary
(or equivalent officer) that no such consents are
required).
|
|
7.
|
All
documentation required by each Credit Party in relation to each Obligor
and Intermediate Holding Company pursuant to that Credit Party’s “know
your customer” requirements.
|
|
8.
|
Documentary
evidence that the agent for service of process named in Clause 27.2 of
this Agreement has accepted its appointment in respect of each Obligor and
that the agent for service of process named in Section 20 of each Share
Pledge has accepted its appointment in respect of each Intermediate
Holding Company.
|
|
9.
|
If
the Agent so requires, in respect of any of the documents referred to
above, a certified English translation prepared by a translator approved
by the Agent.
|
PART
B
The
following are the documents referred to in Clause 8.1(b) that are to be
delivered (without duplication) on or before an Expected Drawdown Date in
respect of an Advance of the Tranche A Loan:
|
1.
|
A
certificate of each Obligor and each Intermediate Holding Company, signed
on behalf of each such party by the president or the secretary (or
equivalent officer) of such party, dated as of the Expected Drawdown Date
(the statements made in such certificate shall be true on and as of the
Expected Drawdown Date), certifying as
to:
|
|
|
(a)
|
the
absence of any amendments to the constitutive documents of such party
since the date of the certificate referred to in paragraph 2 of Part A
above;
|
|
|
(b)
|
the
absence of any proceeding for the dissolution or liquidation of such
party;
|
|
|
(c)
|
the
veracity in all material respects of the representations and warranties
contained in this Agreement or, in the case of an Intermediate Holding
Company, the relevant Share Pledge, as though made on and as of the
Expected Drawdown Date;
|
|
|
(d)
|
the
absence of any material misstatement of fact in any information provided
by the Obligors or any Intermediate Holding Company to the Agent or any
Lender and that such information did not omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
and
|
|
|
(e)
|
the
absence of any event occurring and continuing, or resulting from the
making of the Advances, that constitutes a Potential Event of Default or
an Event of Default.
|
|
2.
|
A
duly executed original of the following documents and each document
required to be delivered by each such document, each duly executed by each
party thereto, and documentary evidence that the Security Interests
created by any Finance Documents have been duly
perfected:
|
|
|
(a)
|
(if
applicable) the Charter Assignment in respect of each Ship being financed
with such Advance;
|
|
|
(b)
|
the
Earnings Account Pledge in respect of each Earnings Account established
with the Agent by the Guarantors;
|
|
|
(c)
|
the
Earnings Assignment in respect of each Ship being financed with such
Advance;
|
|
|
(d)
|
the
Insurance Assignment in respect of each Ship being financed with such
Advance;
|
|
|
(e)
|
each
Manager’s Undertaking in respect of each Ship being financed with such
Advance;
|
|
|
(f)
|
the
Mortgage (and, if applicable, the Deed of Covenants) in respect of each
Ship being financed with such
Advance;
|
|
|
(g)
|
the
Share Pledge in respect of the relevant Guarantor(s);
and
|
|
|
(h)
|
(if
applicable) an Accession Agreement.
|
|
3.
|
If
applicable, with respect to each Guarantor (to the extent not already
delivered under Part A):
|
|
|
(a)
|
copies
of its constitutional documents, and each amendment thereto, certified as
of a date reasonably near the date of the Expected Drawdown Date by its
president or the secretary (or equivalent officer) as being a true and
correct copy thereof;
|
|
|
(b)
|
originals
or copies of certificates dated as of a date reasonably near the date of
the Expected Drawdown Date, certifying that it is duly incorporated (or
formed) and in good standing under the laws of its jurisdiction of
incorporation (or formation);
|
|
|
(c)
|
copies
of resolutions of its directors (or equivalent governing body) (and where
required, its shareholders or equivalent equity holders) authorizing the
execution of each Finance Document to which it is or is to be a party and
authorizing named officers or attorneys-in-fact to execute such documents
and give and notices required by the Finance Documents, in each case
certified as of a date reasonably near the date of the Expected Drawdown
Date by its president or the secretary (or equivalent officer) as being a
true and correct copy thereof;
|
|
|
(d)
|
the
original or a certified copy of any power of attorney under which any
Finance Document is to be executed on its
behalf;
|
|
|
(e)
|
copies
of all consents which it requires to enter into, or make any payment or
perform any of its obligations under or in connection with the
transactions contemplated by any Finance Document to which it is to be a
party, each certified as of a date reasonably near the date of the
Expected Drawdown Date by its president or the secretary (or equivalent
officer) as being a true and correct copy thereof (or certification by
such president or secretary (or equivalent officer) that no such consents
are required);
|
|
|
(f)
|
all
documentation required by each Credit Party in relation to such Identified
Ship Owner pursuant to that Credit Party’s “know your customer”
requirements;
|
|
|
(g)
|
documentary
evidence that the agent for service of process named in Clause 27.2 has
accepted its appointment in respect of such Guarantor;
and
|
|
|
(h)
|
documentary
evidence, in form and substance satisfactory to the Majority Lenders, of
the capital structure of such
Guarantor.
|
|
4.
|
[Intentionally
omitted].
|
|
5.
|
[Intentionally
omitted].
|
6. With
respect to each Ship:
|
|
(a)
|
documentary
evidence that the relevant Ship is registered in the name of the relevant
Obligor under an Approved Flag, free of all recorded liens and
encumbrances, save as contemplated by the Finance Documents (which shall
be established by a Certificate of Ownership and Encumbrance (or similar
instrument) issued by the appropriate authority of the Approved Flag State
stating that such Ship is owned by the relevant Obligor and that there are
on record no other mortgages, liens or other encumbrances on such Ship
except the relevant Mortgage);
|
|
|
(b)
|
documentary
evidence that the relevant Mortgage has been registered against the
relevant Ship as a valid first preferred/priority ship mortgage in
accordance with the laws of the Approved Flag State and the Security
Interest created by such Mortgage shall have been duly
perfected;
|
|
|
(c)
|
documentary
evidence that the relevant Ship is classed with the relevant
Classification Society in the highest classification and rating for
vessels of the same age and type without any outstanding conditions or
recommendations affecting class (other than those for which the time
prescribed for curing the condition or recommendation has not passed),
which shall be established by a Confirmation of Class Certificate issued
by the Classification Society of such Ship and dated a date reasonably
near the relevant Expected Drawdown Date (N.B.: a “Class Statement” or similar
instrument shall not be acceptable for purposes of this
clause);
|
(d) documentary
evidence that the relevant Ship:
|
|
(i)
|
is
insured in compliance with the terms of the relevant Mortgage (or Deed of
Covenants) (which insurance shall include mortgagee’s interest insurance
with additional perils pollution);
and
|
|
|
(ii)
|
is
or will be managed by the Approved Manager(s) in accordance with a
management agreement acceptable to the Majority
Lenders;
|
|
|
(e)
|
a
certificate by the president or the secretary (or equivalent officer) of
the relevant Obligor, or a certificate of the Approved Manager
(technical), identifying and giving the address and other communication
details of the ISM Responsible Person(s) for the relevant
Ship;
|
|
|
(f)
|
copies
of the Document of Compliance and Safety Management Certificate referred
to in paragraph (a) of the definition of the ISM Code Documentation for
the relevant Ship, certified as true and in effect by the president or the
secretary (or equivalent officer) of the relevant Obligor or the Approved
Manager (technical), provided that, the
relevant Obligor may deliver to the Agent on or before the Expected
Drawdown Date an undertaking, in form and substance satisfactory to the
Agent, to deliver a copy of the Safety Management Certificate to the Agent
within 10 Business Days after the relevant Expected Drawdown
Date;
|
|
|
(g)
|
copies
of such other ISM Code Documentation as the Agent may have requested by
written notice to the Borrower not later than 2 days before the relevant
Expected Drawdown Date, certified as true and complete in all material
respects by the relevant Obligor or the Approved
Manager;
|
|
|
(h)
|
certification
by the relevant Obligor that:
|
|
|
(i)
|
the
relevant Ship has and will maintain for the duration of the Security
Period a valid International Ship Security Certificate (and either a true
copy of such International Ship Security Certificate shall be attached to
such Obligor’s certification or the relevant Obligor shall undertake to
deliver a certified copy of such certificate as soon as it becomes
available);
|
|
|
(ii)
|
the
security system of the relevant Ship and associated security equipment
complies with, and at all times during the Security Period will comply
with, the applicable requirements of Chapter XI-2 of SOLAS and Part A of
the ISPS Code; and
|
|
|
(iii)
|
an
approved ship security plan is in place and will be maintained at all
times during the Security Period;
|
|
|
(i)
|
a
valuation of the Fair Market Value of the relevant Ship;
and
|
|
|
(j)
|
a
favorable report from an insurance consultant nominated by the Agent
confirming that the insurance placed on the relevant Ship is in compliance
with the Mortgage (or Deed of Covenants) thereon (and all costs associated
with such report shall be payable by the
Borrower).
|
|
7.
|
Documentary
evidence that each Guarantor has opened its Earnings Account with the
Agent.
|
|
8
|
A
favorable opinion of Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP, New
York counsel for the Credit Parties, in form, scope and substance
satisfactory to the Credit Parties.
|
|
9
|
A
favorable opinion of Xxxxxx & Xxxxxx LLP, special New York, Xxxxxxxx
Islands and Liberian counsel to the Obligors, in form, scope and substance
satisfactory to the Credit Parties.
|
|
10.
|
A
favorable opinion of special Cypriot, Maltese, Bahamian, Singaporean
and/or Panamanian counsel to the Credit Parties, in form, scope and
substance satisfactory to the Credit
Parties.
|
PART
C
The
following are the documents referred to in Clause 8.1(c) that are to be
delivered (without duplication) on or before an Expected Drawdown Date in
respect of an Advance of the Tranche B Loan:
|
1.
|
A
certificate of each Obligor and each Intermediate Holding Company, signed
on behalf of each such party by the president or the secretary (or
equivalent officer) of such party, dated as of the Expected Drawdown Date
(the statements made in such certificate shall be true on and as of the
Expected Drawdown Date), certifying as
to:
|
|
|
(a)
|
the
absence of any amendments to the constitutive documents of such party
since the date of the certificate referred to in paragraph 2 of Part A
above;
|
|
|
(b)
|
the
absence of any proceeding for the dissolution or liquidation of such
party;
|
|
|
(c)
|
the
veracity in all material respects of the representations and warranties
contained in this Agreement or, in the case of an Intermediate Holding
Company, the relevant Share Pledge, as though made on and as of the
Expected Drawdown Date;
|
|
|
(d)
|
the
absence of any material misstatement of fact in any information provided
by the Obligors or any Intermediate Holding Company to the Agent or any
Lender and that such information did not omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
and
|
|
|
(e)
|
the
absence of any event occurring and continuing, or resulting from the
making of the Advances, that constitutes a Potential Event of Default or
an Event of Default.
|
|
2.
|
A
duly executed original of the following documents and each document
required to be delivered by each such document, each duly executed by each
party thereto, and documentary evidence that the Security Interests
created by any Finance Documents have been duly
perfected:
|
|
|
(a)
|
(if
applicable) the Charter Assignment in respect of each Additional
Ship;
|
|
|
(b)
|
the
Earnings Account Pledge in respect of each Earnings Account established
with the Agent by each Additional Ship Owner that executes an Accession
Agreement;
|
|
|
(c)
|
the
Earnings Assignment in respect of each Additional Ship being financed with
such Advance;
|
|
|
(d)
|
the
Insurance Assignment in respect of each Additional Ship being financed
with such Advance;
|
|
|
(e)
|
each
Manager’s Undertaking in respect of each Additional Ship being financed
with such Advance;
|
|
|
(f)
|
the
Mortgage (and, if applicable, the Deed of Covenants) in respect of each
Additional Ship being financed with such
Advance;
|
|
|
(g)
|
the
Share Pledge in respect of each Additional Ship Owner that executes an
Accession Agreement; and
|
|
|
(h)
|
the
Accession Agreement in respect of each Additional Ship
Owner.
|
|
3.
|
With
respect to each Additional Ship Owner (to the extent not already delivered
under Part A):
|
|
|
(a)
|
copies
of its constitutional documents, and each amendment thereto, certified as
of a date reasonably near the date of the Expected Drawdown Date by its
president or the secretary (or equivalent officer) as being a true and
correct copy thereof;
|
|
|
(b)
|
originals
or copies of certificates dated as of a date reasonably near the date of
the Expected Drawdown Date, certifying that each it is duly incorporated
(or formed) and in good standing under the laws of its jurisdiction of
incorporation (or formation);
|
|
|
(c)
|
copies
of resolutions of its directors (or equivalent governing body) (and where
required, its shareholders or equivalent equity holders) authorizing the
execution of each Finance Document to which it is or is to be a party and
authorizing named officers or attorneys-in-fact to execute such documents
and give and notices required by the Finance Documents, in each case
certified as of a date reasonably near the date of the Expected Drawdown
Date by its president or the secretary (or equivalent officer) as being a
true and correct copy thereof;
|
|
|
(d)
|
the
original or a certified copy of any power of attorney under which any
Finance Document is to be executed on its
behalf;
|
|
|
(e)
|
copies
of all consents which it requires to enter into, or make any payment or
perform any of its obligations under or in connection with the
transactions contemplated by any Finance Document to which it is to be a
party, each certified as of a date reasonably near the date of the
Expected Drawdown Date by its president or the secretary (or equivalent
officer) as being a true and correct copy thereof (or certification by
such president or secretary (or equivalent officer) that no such consents
are required);
|
|
|
(f)
|
all
documentation required by each Credit Party in relation to such Additional
Ship Owner pursuant to that Credit Party’s “know your customer”
requirements;
|
|
|
(g)
|
documentary
evidence that the agent for service of process named in Clause 27.2 has
accepted its appointment in respect of such Additional Ship
Owner;
|
|
|
(h)
|
documentary
evidence, in form and substance satisfactory to the Majority Lenders, of
the capital structure of such Additional Ship Owner;
and
|
|
|
(i)
|
documentary
evidence that it has opened its Earnings Account with the
Agent.
|
|
4.
|
A
copy of each Additional Ship MOA (and all addenda and supplements
thereto), each to be in form and substance acceptable to the Majority
Lenders and certified as of a date reasonably near the date of the
relevant Drawdown Notice by the president or the secretary (or equivalent
officer) of the relevant Additional Ship Owner as being a true and correct
copy thereof.
|
|
5.
|
With
respect to each Additional Ship, documentary evidence that on the relevant
Delivery Date:
|
|
|
(a)
|
the
relevant Additional Ship has been unconditionally delivered by the Seller
to, and unconditionally accepted by, the relevant Additional Ship Owner in
accordance with all of the terms and conditions of the relevant Additional
Ship MOA, free and clear of all liens and encumbrances, together with a
copy, certified as of the relevant Delivery Date of such Additional Ship
by the president or the secretary (or equivalent officer) of such
Additional Ship Owner as being a true and correct copy of the original,
of:
|
|
|
(i)
|
the
Protocol of Delivery and Acceptance for such Additional Ship, duly
executed by the Seller and such Additional Ship
Owner;
|
|
|
(ii)
|
the
Xxxx of Sale delivered by the Seller to such Additional Ship
Owner;
|
|
|
(iii)
|
the
commercial invoice issued by the Seller to such Additional Ship Owner;
and
|
|
|
(iv)
|
the
corporate authorities of the Seller permitting such Seller to sell the
Additional Ship to such Additional Ship Owner under the terms of the
Additional Ship MOA; and
|
|
|
(b)
|
there
is/are no pending dispute(s) or arbitration proceedings arising out of or
in connection with the relevant Additional Ship MOA (which may be
established by a certificate dated as of the relevant Expected Drawdown
Date by the president or the secretary (or equivalent officer) of the
relevant Additional Ship Owner);
|
6. With
respect to each Additional Ship:
|
|
(a)
|
documentary
evidence that the relevant Additional Ship is registered in the name of
the relevant Obligor under an Approved Flag, free of all recorded liens
and encumbrances, save as contemplated by the Finance Documents (which
shall be established by a Certificate of Ownership and Encumbrance (or
similar instrument) issued by the appropriate authority of the Approved
Flag State stating that such Additional Ship is owned by the relevant
Obligor and that there are on record no other mortgages, liens or other
encumbrances on such Ship except the relevant
Mortgage);
|
|
|
(b)
|
documentary
evidence that the relevant Mortgage has been registered against the
relevant Additional Ship as a valid first preferred/priority ship mortgage
in accordance with the laws of the Approved Flag State and the Security
Interest created by such Mortgage shall have been duly
perfected;
|
|
|
(c)
|
documentary
evidence that the relevant Additional Ship is classed with the relevant
Classification Society in the highest classification and rating for
vessels of the same age and type without any outstanding conditions or
recommendations affecting class (other than those for which the time
prescribed for curing the condition or recommendation has not passed),
which shall be established by a Confirmation of Class Certificate issued
by the Classification Society of such Additional Ship and dated a date
reasonably near the relevant Expected Drawdown Date (N.B.: a “Class Statement” or similar
instrument shall not be acceptable for purposes of this
clause);
|
(d) documentary
evidence that the relevant Additional Ship:
|
|
(i)
|
is
insured in compliance with the terms of the relevant Mortgage (or Deed of
Covenants) (which insurance shall include mortgagee’s interest insurance
with additional perils pollution);
and
|
|
|
(ii)
|
is
or will be managed by the Approved Manager(s) in accordance with a
management agreement acceptable to the Majority
Lenders;
|
|
|
(e)
|
a
certificate by the president or the secretary (or equivalent officer) of
the relevant Obligor, or a certificate of the Approved Manager
(technical), identifying and giving the address and other communication
details of the ISM Responsible Person(s) for the relevant Additional
Ship;
|
|
|
(f)
|
copies
of the Document of Compliance and Safety Management Certificate referred
to in paragraph (a) of the definition of the ISM Code Documentation for
the relevant Ship, certified as true and in effect by the president or the
secretary (or equivalent officer) of the relevant Obligor or the Approved
Manager (technical), provided that the
relevant Obligor may deliver to the Agent on or before the Expected
Drawdown Date an undertaking, in form and substance satisfactory to the
Agent, to deliver a copy of the Safety Management Certificate to the Agent
within 10 Business Days after the relevant Expected Drawdown
Date;
|
|
|
(g)
|
copies
of such other ISM Code Documentation as the Agent may have requested by
written notice to the Borrower not later than 2 days before the relevant
Expected Drawdown Date, certified as true and complete in all material
respects by the relevant Obligor or the Approved
Manager;
|
|
|
(h)
|
certification
by the relevant Obligor that:
|
|
|
(i)
|
the
relevant Additional Ship has and will maintain for the duration of the
Security Period a valid International Ship Security Certificate (and
either a true copy of such International Ship Security Certificate shall
be attached to such Obligor’s certification or the relevant Obligor shall
undertake to deliver a certified copy of such certificate as soon as it
becomes available);
|
|
|
(ii)
|
the
security system of the relevant Additional Ship and associated security
equipment complies with, and at all times during the Security Period will
comply with, the applicable requirements of Chapter XI-2 of SOLAS and Part
A of the ISPS Code; and
|
|
|
(iii)
|
an
approved ship security plan is in place and will be maintained at all
times during the Security Period;
|
|
|
(i)
|
a
valuation of the Fair Market Value of the relevant Additional Ship;
and
|
|
|
(j)
|
a
favorable report from an insurance consultant nominated by the Agent
confirming that the insurance placed on the relevant Additional Ship is in
compliance with the Mortgage (or Deed of Covenants) thereon (and all costs
associated with such report shall be payable by the
Borrower).
|
|
7.
|
A
favorable opinion of Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP, New
York counsel for the Credit Parties, in form, scope and substance
satisfactory to the Credit Parties.
|
|
8.
|
A
favorable opinion of Xxxxxx & Xxxxxx LLP, special New York, Xxxxxxxx
Islands and Liberian counsel to the Obligors, in form, scope and substance
satisfactory to the Credit Parties.
|
|
9.
|
A
favorable opinion of special Cypriot, Maltese, Bahamian, Singaporean
and/or Panamanian counsel to the Credit Parties, in form, scope and
substance satisfactory to the Credit
Parties.
|
SCHEDULE
4
ASSIGNMENT
AND ACCEPTANCE
Dated
as of [l]
Reference is made to the Amended and
Restated Loan Agreement dated as of [l], 2008 (the “Loan Agreement”) among
OceanFreight Inc. as Borrower, the companies named therein as joint and several
Guarantors, the banks and financial institutions described therein as Lenders,
Nordea Bank Norge ASA, acting
through its Grand Cayman branch, as Lead Arranger and Bookrunner, Nordea
Bank Finland PLC, acting through its New York Branch, as Administrative Agent
and Security Trustee, and Nordea Bank Finland PLC, acting through its New York branch, as
Swap Bank. Capitalized terms used but not defined herein shall
have the meaning assigned such terms in the Loan Agreement.
______________________ (the “Assignor”) and
________________________ (the “Assignee”) agree as
follows:
1. As
of the Effective Date (defined in Paragraph 4 below), the Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases and assumes from
the Assignor, that interest in and to all of the Assignor’s rights and
obligations under the Loan Agreement which represents the Percentage Interest
specified in Section 1 of Annex 1 hereto in the Assignor’s Commitment and the
Advance(s) owing to the Assignor. After giving effect to such sale
and assignment, the Assignee’s Commitment and the amount of the Advance owing to
the Assignee will be as set forth in Section 2 of Annex 1.
2. The
Assignor (a) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; and (b) makes no representation or warranty and
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Loan Agreement, the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Agreement, or any other instrument or document furnished pursuant thereto
and (b) the financial condition of the Obligors or the performance or observance
by the Obligors of any of their obligations under the Loan Agreement or any
other instrument or document furnished pursuant thereto.
3. The
Assignee (a) confirms that it has received a copy of the Loan Agreement and the
other Finance Documents, together with copies of the financial statements
referred to in the Loan Agreement, and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (b) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Agreement; (c) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (d) agrees that it will be bound by the Loan
Agreement and perform in accordance with its terms all of the obligations which
by the terms of the Loan Agreement are required to be performed by it as a
Lender; and (e) specifies as its address for notices the offices set forth
beneath its name on the signature page hereof.
4. The
effective date (the “Effective
Date”) for this Assignment and Acceptance shall be the date of acceptance
hereof by the Agent, unless a later date is specified in Annex 1 hereto, provided that no Assignment
and Acceptance shall be effective until and unless the terms and conditions of
Clause 19.2 of the Loan Agreement are complied with. Following the
execution of this Assignment and Acceptance, two counterparts will be promptly
delivered by the Assignee to the Agent, and the Agent shall promptly forward a
counterpart to the Borrower.
5. Upon
such acceptance and recording, as of the Effective Date, (a) the Assignee shall
be a party to the Loan Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender; and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Loan
Agreement.
6. Upon
such acceptance and recording, from and after the Effective Date, the Agent
shall make all payments under the Loan Agreement in respect of the assignment
effected hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Loan Agreement for periods prior to the
Effective Date directly between themselves.
7. This
Assignment and Acceptance shall be governed by, and shall be construed in
accordance with, the laws of the State of New York.
NAME
OF
ASSIGNOR NAME
OF ASSIGNEE
By:________________________ By:
________________________
Name:
Name:
Title:
Title:
Address
for Notices:
____________________________
____________________________
____________________________
Annex
1
to
Assignment
and Acceptance
Dated
as of [l]
Section
1
Percentage Interest:
Section
2
Assignee’s
Commitment: $
Aggregate
Outstanding Principal
Amount of Advances owing
to
the
Assignee:
$
Section
3
Effective
Date:
NAME
OF ASSIGNOR
By:
_______________________
Name
Title
APPENDIX
A
FORM
OF ACCESSION AGREEMENT
APPENDIX
B
FORM
OF COMPLIANCE CERTIFICATE
APPENDIX
C
FORM
OF CHARTER ASSIGNMENT
APPENDIX
D
FORM
OF EARNINGS ACCOUNT PLEDGE
APPENDIX
E
FORM
OF EARNINGS ASSIGNMENT
APPENDIX
F
FORM
OF INSURANCE ASSIGNMENT
APPENDIX
G
FORMS
OF MANAGER’S UNDERTAKING
1-Technical
Manager
2-Commercial
Manager
APPENDIX
H
FORMS
OF MORTGAGE AND DEED OF COVENANTS
1-Bahamian
2-Cypriot
3-Maltese
4-Xxxxxxxx
Islands
5-Liberian
6-Panamanian
7-Singaporean
APPENDIX
I
FORM
OF NOTES
1-Tranche
A Loan
2-Tranche
B Loan
APPENDIX
J
FORM
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