Exhibit 10.2
LOAN AGREEMENT
DATED 11th JUNE 2001
BETWEEN
OCEANOPERA SHIPPING LIMITED
- the Borrower -
- and -
HSBC BANK PLC
- the Bank -
INDEX
CLAUSE PAGE NO
------ -------
1. Purpose and Definitions 1
2. Loan 5
3. Interest and Interest Periods 5
4. Repayments and Prepayments 7
5. Fees and Expenses 8
6. Payments and Accounts 9
7. Representations and Warranties 10
8. Undertakings 12
9. Conditions 16
10. Events of Xxxxxxx 00
00. Indemnities and Expenses 18
12. Force Majeure, Unlawfulness, Increased Costs, Alternative
Interest Rates 19
13. Set-off Security 22
14. Assignment and Lending Offices 22
15. Notices and Other Matters 23
16. Law and Jurisdiction 25
SHEDULE 1: Form of Drawdown Notice 27
SHEDULE 2: Documents Required 28
1
LOAN AGREEMENT
Dated 11th June 2001
BETWEEN
OCEANOPERA SHIPPING LIMITED, a company incorporated under the laws of the
Republic of Cyprus, whose registered office is at Tribune House, 00 Xxxxx
xxxxxx, Xxxxxxx, Xxxxxx (the "Borrower")
and
HSBC BANK PLC, a banking company duly incorporated under the laws of England,
whose registered office is at 00-00 Xxxxxxx, Xxxxxx XX0X 0XX, acting for the
purposes of this Agreement through its branch at 00 Xxxx Xxxxxxx, Xxxxxxx,
Xxxxxx (the "Bank").
1.- PURPOSE AND DEFINITIONS
1.01 This Agreement sets out the terms and conditions upon which HSBC Bank plc
will make available to the Borrower a term loan facility up to U.S. Dollars
three million two hundred thousand ($ 3.200.000) for a period of three (3) years
from the drawdown date of the said term loan facility, for the purpose of
refinancing the Borrower's outstanding indebtedness to the Bank ANZ in respect
of the vessel "NIKOLAOS P" under Cypriot flag, owned by the Borrower.
1.02 In this Agreement, unless the context otherwise requires:
"AGREED RATE" means a rate agreed between the Bank and the Borrower on the basis
of which (instead of LIBOR) the interest rate is determined pursuant to Clause
3.01;
"ASSIGNMENT" means the Assignment of Insurances, Earnings and Requisition
Compensation of the Vessel in favour of the Bank;
"BANK" means HSBC BANK plc acting through its branch at 00 Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx and includes its successors and assignees;
"BANKING DAY" means a day on which in each country or place in or at which any
act,is required to be done under this Agreement banks and the relevant foreign
exchange markets are open for the transaction of business of the nature
concerned;
2
"COMMITMENT" means the total sum of $ 3,200,000 to be made available by the Bank
to the Borrower, in one advance in accordance with Clause 2, subject to the
terms and conditions of this Agreement;
"DEED OF COVENANTS" means in relation to the Mortgage, the Deed of Covenants
supplemental thereto in form and substance satisfactory to the Bank;
"DOLLARS" AND "$" means the lawful currency of the United States of America;
"DRAWDOWN DATE" means the date on which the Loan is advanced to the Borrower
hereunder pursuant to Clause 2;
"DRAWDOWN NOTICE" means a notice substantially in the terms of Schedule 1;
"DRAWDOWN PERIOD" means the period from the date of this Agreement and ending at
11.00 a.m. (London time) on 30th June 2001 or, if earlier, (i) the date on which
the Loan is advanced by the Bank to the Borrower, or (ii) the date on which the
obligation of the Bank to make the Commitment available is terminated or ceases
according to Clauses 10.02 or 12;
"EARNINGS" in relation to the Vessel, means all hires, freights, pool income and
other sums payable to or for the account of the Owner in respect of the Vessel
including (without limitation) all remuneration for salvage and towage services,
demurrage and detention moneys, contributions in general average, compensation
in respect of any requisition for hire and damages (whether awarded by any court
or arbitral tribunal or by agreement or otherwise) for breach or termination of
any contract for the operation, employment or use of the Vessel;
"EARNINGS ACCOUNT" means a bank account opened or to be opened with the Bank in
the name of the Borrower or other person nominated by the Borrower and
-designated "EARNINGS ACCOUNT" or with such other designation as the Bank shall
approve or require, to which (inter alia) all Earnings of the Vessel are to be
paid;
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating), pledge,
lien, hypothecation, assignment, security interest or other encumbrance securing
any obligation of any person;
"EVENT OF DEFAULT" means any of the events or circumstances described in Clause
10.01;
"FINAL MATURITY DATE" means the date falling three (3) years after the Drawdown
Date of the Loan;
"GUARANTEE" means the Personal Guarantee;
"GUARANTOR" means the Personal Guarantor;
3
"INDEBTEDNESS" means any obligation for the payment or repayment of money,
whether present or future, actual or contingent;
"INTEREST PAYMENT DATE" means the last day of an Interest Period and in respect
of any Interest Period of more than three (3) months duration the day falling at
successive three (3) monthly intervals after the commencement of such Interest
Period;
"INTEREST PERIOD" means each period for the calculation of interest in respect
of the Loan ascertained in accordance with Clauses 3.02 and 3.03;
"LIBOR" means, in relation to a particular period and a particular amount the
rate per cent per annum at which the Bank is able in accordance with its normal
practices to acquire dollar deposits in amounts comparable with this amount for
that period in the London Interbank Eurocurrency Market at or about 11 a.m.
(London time) on the second Banking Day before the beginning of that period;
"LOAN" means the aggregate principal amount owing to the Bank under this
Agreement at any relevant time;
"LAW" means any law, statute, treaty convention, regulation, instrument or other
subordinate legislation or other legislative or quasi-legislative rule or
measure including the ISM CODE, or any order or decree of any government,
judicial or public or other body or authority;
"MARGIN" means one point five per cent (1,5%) per annum;
"MONTH" or "MONTHS" means a period of the required number of calendar months but
ending, subject to the exceptions below, on the day numerically corresponding to
the day of the calendar month on which it started and "monthly" shall be
construed accordingly. The exceptions are that (i) if the period started on the
last Banking Day in a calendar month or if there is no such numerically
corresponding day, it shall end on the last Banking Day in the relevant calendar
month, and (ii) if such numerically corresponding day is not a Banking Day, the
period shall end on the next Banking Day in the same calendar month but if there
is no such Banking Day it shall end on the preceding Banking Day;
"MORTGAGE" means the First Statutory Cypriot Mortgage and Deed of Covenants on
the Vessel;
"OWNER" means the owner of the Vessel as specified in the definition of Vessel.
"PERMITTED ENCUMBRANCE" means any encumbrance created pursuant to the Security
Documents or permitted to exist pursuant to the terms of this Agreement or the
Security Documents;
4
"PERSONAL GUARANTEE" means the irrevocable and unconditional guarantee to be
executed by the Personal Guarantor in favour of the Bank in form and substance
satisfactory to the Bank;
"PERSONAL GUARANTOR" means the person nominated by the Borrower and accepted by
the Bank who will execute the Personal Guarantee;
"REPAYMENT DATE" means each of the dates specified in Clause 4.01 on which the
Repayment Installments shall be payable by the Borrower to the Bank;
"REPAYMENT INSTALLMENT" means each installment of the Loan which becomes due for
repayment by the Borrower to the Bank on a Repayment Date pursuant to Clause
4.01;
"REQUISITION COMPENSATION" in relation to the Vessel, means all compensation or
other money which may from time to time be payable to the Owner as a result of
the Vessel being requisitioned for title or in any other way compulsorily
acquired (other than by way of requisition for hire);
"SECURITY DOCUMENTS" means this Agreement, the Guarantee; the Mortgage and Deed
of Covenants, the Assignment and any such other documents as may have been or
shall hereafter be executed to secure all or any of the sums of money from time
to time owing (whether the same shall be due and payable or not) by the Borrower
hereunder;
"TAXES" means all levies, imposts, duties, charges, fees, deductions and
withholdings (including any related interest and penalties) and any restrictions
or conditions resulting in any charge, other than taxes on the overall net
income of the Bank, and "TAX" and "TAXATION" shall be interpreted accordingly;
"TOTAL LOSS", in relation to the Vessel, means (a) an actual, constructive,
arranged, agreed or compromised total loss of the Vessel or (b) the requisition
for title or compulsory acquisition of the Vessel by or on behalf of any
government or other authority (other than by way of requisition for hire) or (c)
capture, seizure, arrest, detention or confiscation of the Vessel by any
government or by any person acting or purporting to act on behalf of any
government, unless the Vessel is released within sixty (60) days thereafter;
"VESSEL" means m/v "NIKOLAOS P" under Cypriot flag, owned by the Borrower.
1.03 Clause headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this Agreement. In this Agreement, unless the
context otherwise requires, references to Clauses and Schedules are to be
construed as references to clauses of, and schedules to, this Agreement,
references to (or to any specified provision of) this Agreement or any other
document shall be construed as references to this Agreement, that provision or
that document as amended with the agreement of the relevant parties and the
prior written consent of the Bank and in force at any relevant time; words
5
importing the plural shall include the singular and vice-versa and references to
a person shall be construed as references to an individual, firm, company,
corporation, unincorporated body of persons or any state or any agency thereof.
2.- THE LOAN
2.01 The Bank, relying upon each of the representations and warranties in Clause
7 agrees to lend to the Borrower upon and subject to the terms of this Agreement
the principal sum of up to U.S. Dollars 3.200.000.
2.02 Subject to the terms and conditions of this Agreement, the Loan shall be
advanced in full to the Borrower by the Bank upon receipt by the Bank from the
Borrower of a Drawdown Notice no later than 12 noon (Greek time) on the third
Banking Day before the proposed Drawdown Date of the Loan.
2.03 (a) The Loan shall not be advanced on any day which is not a Banking Day or
after the end of the Drawdown Period.
(b) A Drawdown Notice shall be effective on actual receipt by the Bank and,
once given, shall, subject as provided in Clause 12, be irrevocable.
2.04 Upon receipt of a Drawdown Notice complying with the terms of this
Agreement the Bank shall, subject to the provisions of Clause 9, on the relevant
date make the full amount of the Commitment available to the Borrower.
2.05 If the Loan is not drawn down by the end of the Drawdown Period the
Commitment shall be automatically canceled.
3.- INTEREST AND INTEREST PERIODS
3.01 The Borrower shall pay interest on the Loan or (as the case may be, each
portion thereof to which a different Interest Period relates) in respect of each
Interest Period (or part thereof) on each Interest Payment Date. The interest
rate for the calculation of interest shall be the rate per annum determined by
the Bank to be the aggregate of (i) the Margin and (ii) LIBOR, unless there is
an Agreed Rate in which case the interest rate for the calculation of interest
shall be the rate per annum determined by the Bank to be the aggregate of (i)
the Margin and (ii) the Agreed Rate.
3.02 The Borrower may by notice received by the Bank not later than 12.00 noon
(Greek time) on the second Banking Day before the beginning of each interest
Period specify whether that Interest Period shall have a duration of 1, 2, 3, 6,
9 or 12 months or any other Period which the Bank may agree.
3.03 Every interest Period shall be subject to market availability to be
conclusively determined by the Bank of the duration specified by the Borrower
pursuant to Clause 3.02 but so that:
6
(a) the initial Interest Period shall end on the date falling 1, 2, 3, 6, 9
or 12 (as specified by the Borrower pursuant to Clause 3.02) months after the
Drawdown Date,
(b) each subsequent Interest Period in respect of the Loan will commence
forthwith upon the expiry of the previous Interest Period relative thereto;
(c) if the Borrower fails to specify the duration of an Interest Period in
accordance with the provisions of Clause 3.02 and 3.03 that Interest Period
shall have a duration of 3 months or other period complying with this Clause
3.03.
3.04 If the Borrower fails to pay any sum on its due date for payment under this
Agreement the Borrower shall pay interest on such sum on demand from that date
up to the date of actual payment (as well after as before judgment) and
compounded at the end of each of the periods determined by the Bank under this
Clause 3.04. Such interest shall be calculated at a rate determined by the Bank
to be two per cent per annum above the aggregate of the Margin and the LIBOR for
such period not exceeding 3 months as the Bank may determine from time to time
in amounts comparable with the sum not paid. Such interest shall be due and
payable on the last day of each such period as determined by the Bank and each
such day shall for the purposes of this Agreement, be treated as an Interest
Payment Date, provided that if such unpaid sum is of principal which became due
and payable on a date other than an Interest Payment Date relating thereto, the
first such period selected by the Bank shall be of a duration equal to the
period between the due date of such principal sum and such Interest Payment Date
and interest shall be payable on such principal sum during such period at a rate
two per cent (2%) above the rate applicable thereto immediately before it fell
due.
If, for the reasons specified in Clause 12.03, the Bank is unable to determine a
rate in accordance with the foregoing provisions of this Clause 3.04, interest
shall be calculated at a rate determined by the Bank to be two per cent (2%) per
annum above the aggregate of the Margin and costs of funds to the Bank as
conclusively determined by the Bank save for manifest error.
3.05 The Bank shall notify the Borrower promptly of the duration of each
Interest period and of each rate of interest determined by it under this Clause
3.
3.06 All payments of interest in respect of the Loan shall be made in Dollars.
All interest and other payments of an annual nature under this Agreement shall
accrue from day to day and be calculated on the basis of actual days elapsed and
a 360 day year. The certificate of the Bank as to any rate of interest or any
rate of exchange determined by it pursuant to this Agreement shall be conclusive
in the absence of manifest error.
7
4.- REPAYMENTS AND PREPAYMENTS
4.01 The Borrower shall repay the Loan by twelve (12) consecutive, quarterly
Repayment Instalments, the first eleven (11) of an amount of U.S. Dollars one
hundred eighty two thousand and five hundred ($ 182.500) each and the last one
(1) of an amount of U.S. Dollars one million one hundred ninety two thousand and
five hundred ($ 1.192.500) to be repaid on each of the Repayment Dates so that
the first be repaid three (3) months after the Drawdown Date and each of the
subsequent ones consecutively on each of the dates falling three months after
the immediately preceding Repayment Date provided that (a) if the last Repayment
Date would otherwise fall after the Final Maturity Date, the last Repayment Date
shall be the Final Maturity Date and (b) there shall be no Repayment Dates after
the Final Maturity Date. In the event that the Commitment is not drawn in full
the Loan shall be repaid in such proportionate lesser amounts as shall suffice
to repay the Loan over the same period.
4.02 The Borrower shall have the right, upon giving the Bank not less than ten
(10) Banking Days' notice in writing to prepay without penalty part or all of
the Loan in each case together with all unpaid interest accrued thereon and all
other sums of money whatsoever due and owing from the Borrower to the Bank
hereunder or pursuant to the other Security Documents and all interest accrued
thereon provided that:
(a) The giving of such notice by the Borrower will irrevocably commit the
Borrower to prepay such amount as stated in such notice.
(b) Such prepayment may take place only on the last day of an Interest Period
relating to the whole of the Loan provided, however, that if the Borrower shall
request consent to make such prepayment on another day and the Bank shall accede
to such request (it being in the sole discretion of the Bank to decide whether
or not to do so) the Borrower will pay in addition to the amount to be prepaid,
any such sum as may be payable to the Bank pursuant to Clause 11.01.
(c) Each partial prepayment shall be equal to U.S. Dollars one hundred eighty
two thousand five hundred ($ 182.500) or a multiple thereof or the balance of
the Loan.
(d) Any prepayment of less than the whole of the Loan will be applied towards
the Repayment Installments in inverse order of their due dates of payment.
(e) Every notice of prepayment shall be effective only on actual receipt by the
Bank, shall be irrevocable and shall oblige the Borrower to make such prepayment
on the date specified.
(f) No amount prepaid may be re-borrowed, and
(g) The Borrower may not prepay the Loan or any part thereof save as expressly
provided in this Agreement.
8
4.03 Unless the Bank agrees to accept substitute security in form and substance
satisfactory to the Bank, the Borrower shall, within thirty (30) days of the
Vessel becoming a Total Loss, prepay the Loan together with accrued interest to
the date of prepayment and all other sums payable by the Borrower to the Bank
pursuant to this Agreement and the other Security Documents (and if any portion
of the Commitment has not been drawn yet, the Commitment shall be reduced to
zero), provided that:
(a) an actual total loss of the Vessel shall be deemed to have occurred at the
actual date and time the Vessel was lost but in the event of the date of the
loss being unknown then the actual total loss shall be deemed to have occurred
on the date on which the Vessel was last reported.
(b) a constructive total loss shall be deemed to have occurred at the date and
time notice of abandonment of the Vessel is given to the insurers of the Vessel
for the time being. If the insurers of the Vessel will not admit the claim for
total loss, the Borrower shall prepay the Loan within 120 days from the time of
notice of abandonment is given to the insurers.
(c) a compromised or arranged total loss shall be deemed to have occurred on the
date on which a binding agreement as to such compromised or arranged total loss
has been entered into by the insurers of the Vessel.
(d) requisition for title or other compulsory acquisition of the Vessel shall be
deemed to have occurred on the date upon which the relevant requisition for
title or other compulsory acquisition occurs.
(e) capture seizure, detention, arrest or confiscation of the Vessel by any
government or by any person acting or purporting to act on behalf of any
government which deprives the owner of the Vessel use of the Vessel for more
than sixty (60) days shall be deemed to occur upon the expiry of the period of
sixty (60) days after the date upon which the relevant capture, seizure,
detention, arrest or confiscation occurred.
4.04 If subject to the provisions of Clause 8.02 (viii) the Vessel is sold, the
Borrower shall prepay to the Bank the amount of the Loan together with accrued
interest.
5.- FEES AND EXPENSES
The Borrower shall pay to the Bank on demand all expenses (including legal,
printing and out-of-pocket expenses) inclusive of Value Added Tax if any,
incurred by the Bank in connection with the negotiation, preparation and
execution of this Agreement and the Security Documents and of any amendment or
extension thereof and all expenses (including legal and out-of-pocket expenses)
inclusive of Value Added Tax if any, incurred by the Bank in contemplation of or
otherwise in connection with the enforcement of, or preservation of any rights
under, any of this Agreement and the Security
9
Documents, or otherwise in respect of the monies owing under any of this
Agreement and the Security Documents.
6.- PAYMENTS AND ACCOUNTS
6.01 All payments to be made by the Borrower under or in respect of any Security
Document shall be made in full in the currency in which the same is due, without
any set-off or counterclaim whatsoever and, subject as provided in Clause 6.03,
free and clear of any present or future Taxes and without any deductions or
withholdings, by not later than 10 a.m. (local time in the place of payment), on
the due date in immediately available funds to the account of the Bank at HSBC
BANK U.S.A. New York (Account No. 000-04779-1) or at such other bank in such
other place as the Bank may have notified to the Borrower. A11 interest and any
other payments hereunder of an annual nature shall accrue from day to day and be
calculated on the basis of 360 day year.
6.02 When any payment would otherwise be due under any of the Security Documents
on a day which is not a Banking Day, the due date for payment shall be extended
to the next following Banking Day unless such Banking Day falls in the next
calendar month in which case payment shall be made on the immediately preceding
Banking Day.
6.03 If at any time any applicable law, regulation or regulatory requirement or
any governmental authority, monetary agency or central bank requires the
Borrower to make any deduction or withholding in respect of Taxes from any
payment due under the Security Documents, the sum due from the Borrower in
respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, the Bank receives a net
sum equal to the sum which it would have received had no such deduction or
withholding been required to be made and the Borrower shall indemnify the Bank
against any losses or costs incurred by it by reason of any failure of the
Borrower to make any such deduction or withholding. The Borrower shall promptly
deliver to the Bank any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or withholding as
aforesaid
6.04 If it shall at any time become unlawful in any jurisdiction or impossible
for the Borrower to make payment of any sum hereunder to the accounts referred
to in Clause 6.01 or in the currency in which such sum is due (the "Currency of
Obligation") the Borrower may agree with the Bank alternative arrangements for
payment of such sum in the Currency of Obligation or in another freely
transferable and convertible currency. If it shall be agreed that payment may be
made in a currency other than the Currency of Obligation such payment shall only
satisfy the obligations of the Borrower to the Bank hereunder to the extent of
the amount in the Currency of Obligation which can be purchased with the sum so
paid at the spot buying rate of the Bank in the London foreign Exchange market
for the Currency of Obligation with the currency in which payment was made, and
the Borrower shall be liable to pay to the Bank the balance of the sum in the
Currency of Obligation which the
10
Bank would have received if payment had been made in accordance with the other
provisions of this Agreement.
6.05 All sums advanced by the Bank to the Borrower under this Agreement and all
interest accrued thereon and all other amounts due under this Agreement from
time to time and all repayments and/or payments thereof shall be debited and
credited respectively to a separate loan account maintained by the Bank in the
name of the Borrower. The Bank may, however, in accordance with its usual -
practices or for its accounting needs, maintain more than one accounts,
consolidate or separate them but all such accounts shall be considered parts of
one single loan account maintained under this Agreement. In case that a ship
mortgage in the form of Account Current is granted as security under this
Agreement, the account(s) referred to in this Clause shall be the Account
Current referred to in the mortgage.
7.- REPRESENTATIONS AND WARRANTIES
7.01 The Borrower hereby represents and warrants to the Bank as at the date
here of that
(a) is duly incorporated and validly existing in good standing under the
laws of the country of its incorporation as a limited liability company has
power to carry on its business as it is now being conducted and to own its
property and other assets;
(b) has power to execute deliver and perform its obligations under this
Agreement and the other Security Documents; all necessary corporate shareholder
and other action has been taken to authorise the execution, delivery and
performance of the same and no limitation on the powers of the Borrower to
borrow will be exceeded as a result of borrowings hereunder;
(c) this, Agreement constitutes and the Security Documents as and when they
are respectively executed by the Borrower will constitute valid and legally
binding obligations of the Borrower;
(d) the execution and delivery of, the performance of its obligations under
and compliance with the provisions of, this Agreement and the Security Documents
by the Borrower will not (i) contravene any existing applicable law, statute
rule or regulation or any judgment, decree or permit to which the Borrower is
subject; (ii) conflict with, or result in any breach of any of the terms of
constitute a default under, any agreement or other instrument to which the
Borrower is party or is subject or by which it or any of its property is bound;
(iii) contravene or conflict with any provision of the Borrower's By-Laws or
(iv) result in the creation or imposition of or oblige the Borrower to create
any encumbrance (other than a Permitted Encumbrance) on any of its Borrower's
assets, rights or revenues;
(e) no litigation or administrative proceeding is taking place, pending or,
to the knowledge of the officers of the Borrower, threatened against
11
the Borrower which would have a material adverse effect on the business, assets
or financial condition of the Borrower;
(f) no event or circumstance which constitutes or which with the giving of
notice or lapse of time or both would constitute an Event of Default has
occurred and is continuing.
7.02 The Borrower further represents and warrants to the Bank that:
(a) every consent, authorisation, licence or approval of or registration
with or declaration to governmental or public bodies or authorities or courts
required by the Borrower to authorise, or required by the Borrower in connection
with, the execution, delivery, validity or enforceability of this Agreement and
each of the Security Documents or the performance by the Borrower of its
obligations hereunder or thereunder has been obtained or made;
(b) the obligations of the Borrower under this Agreement is direct, general
and unconditional obligations of the Borrower and rank at least pari passu with
all other present and future unsecured and unsubordinated obligations (including
contingent obligations) of the Borrower (with the exemption of such obligations
as are mandatorily preferred by law and not by contract);
(c) neither the Borrower nor the Guarantor are (nor with the giving of
notice or lapse of time or both) in breach of or in default under any agreement
relating to Indebtedness to which it is party or by which it may be bound;
(d) the information, exhibits and reports furnished by the Borrower to the
Bank in connection with the negotiation and preparation of this Agreement and
each of the Security Documents are true and accurate in all material respects
and not misleading, do not omit material facts and all reasonable enquiries have
been made to verify the facts contained therein; there are no other facts the
omission of which would make any fact or statement therein misleading;
(e) no Taxes are imposed by withholding or otherwise on any payment to be
made by the Borrower under this Agreement or are imposed on or by virtue of the
execution or delivery by the Borrower of this Agreement or any document or
instrument to be executed or delivered hereunder;
(f) the choice by the Borrower of English law to govern this Agreement and
the submission by the Borrower to the non-exclusive jurisdiction of the courts
of England are valid and binding;
(g) it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement that it or any other instrument be
filed, recorded, registered or enrolled in any court, public office or elsewhere
in England or Greece. This Agreement is in proper form for its enforcement in
the courts of England or Greece.
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7.03 The representations and warranties in Clause 7.01 shall be deemed to be
repeated by the Borrower on and as of the date of the Drawdown Notice, and of
each Interest Payment Date as if made with reference to the facts and
circumstances existing at such date.
8.- UNDERTAKINGS
8.01 The Borrower undertakes with the Bank that from the date of this Agreement
and so long as any monies are owing under this Agreement, it will:
(a) promptly inform the Bank of any occurrence of which it becomes aware
which might adversely affect its ability to perform its obligations under this
Agreement and/or any of the Security Documents and, without limiting the
generality of the foregoing, will inform the Bank of any Event of Default or any
event which with the giving of notice or lapse of time or both would constitute
an Event of Default forthwith upon becoming aware thereof;
(b) without prejudice to Clause 7.02 and 9, obtain or cause to be
obtained, maintain in full force and effect and comply in all material respects
with the conditions and restrictions (if any) imposed in connection with, every
consent, authorisation, licence or approval of governmental or public bodies or
authorities and do, or cause to be done, all other acts and things, which may
from time to time be necessary or desirable under applicable law for the
continued due performance of all its obligations under this Agreement and each
of the other Security Documents;
(c) use the Loan exclusively for the purpose specified in Clause 1.01;
(d) ensure that its obligations under this Agreement shall, subject to the
operation of Clause 8.02, at all times rank at least pari passu with all its
other present and future unsecured and unsubordinated obligations (including
contingent obligations);
(e) cause to be prepared by auditors acceptable to the Bank in each
financial year audited financial statements in a form consistent with generally
accepted accounting principles and practices in Greece consistently applied;
(f) send to the Bank as many copies as the, Bank may reasonably require of
the annual balance sheets and income statements of the Borrower and every
balance sheet, profit and loss account, report, notice or like document issued
by it to its shareholders within 150 days of the close of their fiscal year;
(g) provide the Bank with such financial and other information concerning
the Borrower, the Guarantor and related companies and their affairs commitments
and operations as the Bank from time to time may reasonably require;
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(h) duly and punctually perform each of its obligations under the Security
Documents.
8.02 The Borrower undertakes with the Bank that from the date of this Agreement
and so long as any monies are owing under this Agreement, it will not, without
the prior written consent of the Bank permit:
(i) any encumbrance on any of its assets other than Permitted Encumbrances
by the Borrower to subsist, arise or be created or extended to secure any
present or future Indebtedness of the Borrower or any other person;
(ii) any Indebtedness of the Borrower to be guaranteed or otherwise assured
against financial loss by any person other than the Borrower;
(iii) the Indebtedness of the Borrower to be subordinated in priority of
payment to any other present or future Indebtedness of the Borrower;
(iv) to conduct any business or activity other than the ownership,
chartering, operation and management of Vessel;
(v) the Borrower to declare or pay any dividend or make any other
distribution of its assets or profits to any stockholder unless the asset to
loan ratio exceeds one hundred and fifty per cent (150%);
(vi) to incur or agree to incur any Indebtedness or material liability
(whether by way of loan, credit facilities or otherwise) nor make any
commitments other than those occurring in the ordinary course of the trading of
the Vessel;
(vii) to issue or agree to issue any guarantee in favour of any persons or
legal entities other than in connection with the ordinary trading and operation
of the Vessel;
(viii) to sell, assign, transfer or otherwise dispose of or abandon the
Vessel.
8.03 The Borrower undertakes that none of the documents defining its
constitution shall be altered in any manner whatsoever and will not change its
beneficial ownership and control from that advised to the Bank or the nature,
organisation and conduct of its business as Owner of the Vessel and will not
change the present managers of the Vessel or substantially change the terms and
conditions of the management of the Vessel (including the management fees)
without prior consultation with the Bank and then only if such terms and
conditions as the Bank shall approve in writing, such approval not to be
unreasonably withheld.
14
8.04 The Borrower will not operate, or permit the operation of the Vessel in any
manner (i) which would violate the laws of the flag of the Vessel the laws of
the owning company or the laws of the nationality of the officers and crew of
the Vessel or any other applicable jurisdiction, or (ii) which would render the
Loan or the Bank's security in the Vessel its insurances and earnings illegal
under the laws of any applicable jurisdiction.
8.05 The Borrower undertakes that:
(i) if at any time the market value of the Vessel (as determined in
accordance with sub-clause (ii) below) together with the value of any additional
security for the Loan constituted pursuant to the provisions of this Clause 8.05
all as certified by the Bank (whose certificate in that respect shall be binding
upon the Borrower) such sum as so certified by the Bank being for the purposes
of this Clause 8.05 referred to as ("the Security Value") shall be less than one
hundred and thirty per cent (130%) of the outstanding amount of the Loan (such
130% of the outstanding amount of the Loan being for the purposes at this Clause
8.05 referred to as "the Specified Amount") then the Borrower shall either:
(1) prepay within thirty days of the date of receipt by the Borrower of the
Bank's said certificate, or on the next Interest Payment Date if the same shall
occur within such thirty day period, such sum in Dollars as is equal to the
amount by which the Specified Amount exceeds the Security Value and in the event
that any such prepayment of part of the Loan shall be made otherwise than on the
expiry of an Interest Period in respect of the Loan the Borrower shall be
obliged forthwith to pay to the Bank such amount (if any) that shall be
determined by the Bank to be necessary to compensate the Bank for any loss
(including loss of profits) incurred by it in liquidating or re-employing fixed
deposits from third parties acquired to effect or maintain the Loan or any part
thereof until the expiry of the then current Interest Periods in respect of the
Loan. Any prepayment made pursuant to this Clause 8.05 (i) (1) shall be applied
in reducing the remaining repayment installments as provided in Clause 4.02;
(2) within 30 days of the date of receipt by the Borrower of the Bank's said
certificate constitute to the satisfaction of the Bank such additional security
for the Loan, as shall be acceptable to the Bank having a value for security
purposes (as determined by the Bank in its absolute discretion) at the date upon
which such additional security shall be constituted which when added to the
Security Value so certified by the Bank shall not be less than the Specified
Amount. Such additional security shall be constituted by:
(a) Pledged cash deposits in favour of the Bank in an amount equal to such
shortfall with the Bank and in an account and manner to be determined by the
Bank, and/or
(b) any other security acceptable to the Bank to be provided in a manner
determined by the Bank.
15
(ii) The said market value of the Vessel shall be determined for the
purposes of sub-clause (i) above and when the Bank shall require by two
shipbrokers appointed by the Bank who shall value the Vessel on the basis of a
sale between a willing buyer and a willing seller free of any charter. The
average of the two valuations of such Shipbrokers shall constitute the market
value of the Vessel for the purposes of sub-clause (i) above and shall be
binding upon the parties hereto.
(iii) All reasonable costs in connection with the Bank obtaining any
valuation of the Vessel referred to in sub-clause (ii) above and any valuation
either of any additional security for the purposes of ascertaining the Security
Value at any time or necessitated by the Borrower electing to constitute
additional security pursuant to sub-clause (i) (2) above (including without
prejudice to the generality of the foregoing costs of the shipbrokers appointed
to value the Vessel) shall be borne by the Borrower.
8.06 The Borrower shall establish with the Bank the Earnings Account of the
Vessel. All payments related to the operation of the Vessel shall be made
through this account.
8.07 The Borrower shall permit any surveyors or other persons appointed by the
Bank to board the Vessel at all reasonable times however no more frequently than
once a year for the purpose of inspecting the condition of the Vessel or for the
purpose of satisfying themselves in regard to proposed or executed repairs
recommended by the Vessel's Classification Society and to afford all proper
facilities for such inspection. The Borrower shall pay the costs and expenses of
the Bank and its surveyors for one yearly inspection, if made.
8.08 The Borrower undertakes that, from the date of this Agreement and as long
as any money is due and/or outstanding under this Agreement or any other
Security Documents, the Borrower shall:
(a) at all times comply and be responsible for compliance by itself and the
Vessel and the Manager, with the ISM Code;
(b) at all times ensure that:
(i) the Vessel has a valid Safety Management Certificate,
(ii) the Vessel is subject to a safety management system which
complies with the ISM Code and; and
(iii) the Manager of the Vessel has a valid Document of Compliance.
(c) promptly notify the Bank of any actual or threatened withdrawal of an
applicable Safety Management Certificate or Document of Compliance;
16
(d) promptly notify the Bank of the identity of the person ashore designated
for the purpose of paragraph 4 of the ISM Code and of any change in the
identity of that person; and
(e) promptly upon becoming aware of the same notify the Bank of the occurrence
of any accident or major non-conformity requiring action under the ISM
Code;
(f) ensure that any reprogramming required to permit the proper functioning, in
and following the year 2000, of
(i) its and manager's of the Vessel computer systems; and
(ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which their computer systems
interface)
and the testing of all such equipment, as so reprogrammed has already been
completed.
9.- CONDITIONS
9.01 The obligation of the Bank to make the Commitment available shall be
subject to the condition that the Bank, or its duly authorised representative,
shall have received not later that two (2) Banking Days before the day on which
the Loan is intended to be advanced, the documents and evidence specified in
Part 1 of Schedule 2 in form and substance satisfactory to the Bank.
9.02 The obligation of the Bank to advance the Loan shall be subject to the
condition that the Bank, or its duly authorised representative, shall have
received on or prior to the Drawdown Date the documents and evidence specified
in Part 2 of Schedule 2 in form and substance satisfactory to the Bank.
9.03 The obligation of the Bank to advance the Loan is subject to the further
conditions that at the time of the giving of the Drawdown Notice for, and at the
time of the advance of the Loan.
(a) the representations and warranties set out in Clause 7 are true and
correct on and as of each such time as if each was made with respect to the
facts and circumstances existing at such time; and
(b) no event or circumstance which constitutes or which with the giving of
notice or lapse of time or both would constitute an Event of Default shall have
occurred and be continuing or would result from the advancing of the Loan.
(c) the Bank shall be satisfied that there is no a material adverse change
in the financial condition and operation of the Borrower and/or the Guarantor or
a material adverse change of circumstances.
17
10.- EVENTS OF DEFAULT
10.01 There shall be an Event of Default if:
(a) the Borrower or any other party (other than the Bank) fails to pay any
sum payable by it under this Agreement and/or any of the Security Documents when
due; or
(b) the Borrower or any other party (other than the Bank) commits any
breach of or omit to observe any of its obligations or undertakings under this
Agreement and/or any of the Security Documents (other than failure to pay any
sum when due) and, in respect of any such breach or omission which in the
opinion of the Bank is capable of remedy, such action as the Bank may require
shall not have been taken within (14) days of the Bank notifying the Borrower or
the Guarantor of such default and of such required action; or
(c) any representation or warranty made or deemed to be made or repeated by
or in respect of the Borrower or any other party (other than the Bank) in or
pursuant to this Agreement and/or any of the Security Documents or in any
notice, certificate or statement referred to in or delivered under this
Agreement and/or any of the Security Documents is or proves to have been
incorrect in any material respect; or
(d) any Indebtedness of the Borrower or of the Guarantor is not paid when
due or by reason of breach or default under the terms of any instrument
evidencing or guaranteeing the same on the part of the Borrower or the Guarantor
becomes due (or capable of being declared due) prior to the date when it would
otherwise have become due or any guarantee or indemnity given by the Borrower or
the Guarantor in respect of Indebtedness is not honoured when due and called
upon; or
(e) any consent, authorisation, licence or approval of or registration with
or declaration to governmental or public bodies or authorities or courts
required by the Borrower or any other party (other than the Bank) to authorise,
or required by the Borrower or any other party (other than the Bank) in
connection with the execution delivery, validity or enforceability of this
Agreement and/or any of the Security Documents or the performance by the
Borrower or any such party of its obligations hereunder or thereunder is
modified in a manner unacceptable to the Bank 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
(f) an encumbrancer takes possession or a receiver or similar officer is
appointed of the whole or any part of the assets, rights or revenues of the
Borrower or the Guarantor or a distress, execution, sequestration or other
process is levied or enforced upon or sued out against any of the assets, rights
or revenues of the Borrower or the Guarantor and is not discharged within thirty
days; or
18
(g) the Borrower or the Guarantor suspends payment of its debts or is
unable to or admit inability to pay its debts as they fall due or proposes or
enters into any composition or other arrangement for the benefit of its
creditors generally or proceedings are commenced in relation to the Borrower or
the Guarantor under any law, regulation or procedure relating to reconstruction
or readjustment of debts; or
(h) the Borrower or the Guarantor is adjudicated or found bankrupt or
insolvent or any order is made by any competent court or resolution passed by
the Borrower for the winding-up or dissolution of the Borrower or for the
appointment of a liquidator, trustee or conservator of the whole or any part of
its assets, rights or revenues; or
(i) any event occurs or proceeding is taken with respect to the Borrower or
the Guarantor in any jurisdiction to which it is subject which has an effect
equivalent or similar to any of the events mentioned in Clause 10.01 (f), (g) or
(h); or
(j) the Borrower or the Guarantor suspends or ceases or threatens to
suspend or ceases to carry on its business; or
(k) all or a material part of the assets, rights or revenues of the
Borrower or the Guarantor are seized, nationalised expropriated or compulsorily
acquired by or under the authority of any government; or
(l) there shall occur, in the reasonable opinion of the Bank a material
adverse change in the financial condition of the Borrower or the Guarantor.
10.02 The Bank may, without prejudice to any other rights of the Bank, at any
time after the happening of an Event of Default (so long as the same is
continuing) by notice to the Borrower declare that:
(a) the obligation of the Bank to make the Commitment or any part of the
Commitment available shall be terminated, whereupon the Commitment shall be
terminated forthwith; and/or
(b) the Loan and all interest and commitment commission accrued and all
other sums payable under the Security Documents have become due and payable,
whereupon the same shall immediately or in accordance with such notice, become
due and payable.
11.- INDEMNITIES AND EXPENSES
11.01 The Borrower shall indemnify the Bank, without prejudice to any of the
Bank's other rights hereunder against any loss (including loss of Margin) or
expense which the Bank shall certify as sustained or incurred by it as a
consequence of (i) any default in payment by the Borrower of any sum under this
Agreement when due, (ii) any Event of Default, (iii) any prepayment of the
19
Loan or part thereof being made under Clauses 4.02, 4.03, 4.04, 12.01, 12.02 or
12.03 otherwise than on an Interest Payment Date or (iv) the Loan not being made
for any reason (including failure to fulfil any of the conditions precedent set
out in Schedule 2 but excluding any default by the Bank) after a Drawdown Notice
has been given, including, in any such case, but not limited to, any loss or
expenses sustained or incurred in maintaining or funding the Commitment or any
part thereof or in liquidating or re-employing deposits from third parties
acquired to effect or maintain the Loan or any part thereof.
11.02 No payment to the Bank under this Agreement pursuant to any judgment or
order of any court or otherwise shall operate to discharge the obligations of
the Borrower in respect of which it was made unless and until payment in full
shall have been received in the currency in which the relevant sum is payable
hereunder ("the Relevant Currency") and to the extent that the amount of any
such payment shall on actual conversion into the Relevant Currency fall short of
the amount of the relevant obligation expressed in the Relevant Currency the
Bank shall have a further separate cause of action against the Borrower for the
recovery of such sum as shall after conversion into the Relevant Currency be
equal to the amount of the shortfall.
11.03 The Borrower shall pay all stamp, documentary, registration or other like
duties (including any duties payable by the Bank) imposed on or in connection
with this Agreement and/or any of the Security Documents or the Loan and shall
indemnify the Bank against any liability arising by reason of any delay or
omission by the Borrower to pay such duties.
11.04 The obligation of the Borrower to pay any amount pursuant to this Clause
11 shall constitute a separate and independent obligation of the Borrower from
their other obligations hereunder and shall not be affected by any indulgence
granted by the Bank or by judgment being obtained for any other sums due under
this Agreement and/or any of the Security Documents, and no proof or evidence of
any actual loss shall be required by the Borrower.
12.- FORCE MAJEURE, UNLAWFULNESS, INCREASED COSTS, ALTERNATIVE INTEREST RATES
12.01 The Bank shall not be liable for any failure to perform the whole or any
part of this Agreement and/or any of the Security Documents resulting directly
or indirectly from the action or inaction of any governmental or local authority
or any strike, lock-out boycott or blockade effected by or upon the Bank or its
employees, or from any act of God or war, whether declared or not.
12.02 If any law, regulation or regulatory requirement or any judgment, order or
direction of any court, tribunal or authority binding upon the Bank in the
jurisdiction in which it is formed or has its principal office or in which any
action is required to be performed for the purposes of this Agreement, renders
it unlawful for the Bank to advance, maintain or fund the Loan the Bank shall
promptly inform the Borrower. If it shall so be unlawful for the Bank to
maintain or fund the Loan the Bank shall give notice to the Borrower requiring
20
the Borrower to prepay the Loan either (i) forthwith or (ii) on a future
specified date and the Borrower will prepay the Loan in accordance with and
subject to such notice and the provisions of Clause 12.04 and 12.05. Without
prejudice to the obligation of the Borrower to make such prepayment the Borrower
and the Bank shall negotiate for a period not exceeding 30 days with a view to
the Bank making available its Commitment and/or maintaining the Loan in whole or
part in a manner which is not unlawful.
12.03 If any law, regulation or regulatory requirement or any judgment, order or
direction of any court, tribunal or authority binding upon the Bank in the
jurisdiction in which it is formed or has its principal office or in which any
action is required to be performed for the purposes of this Agreement taking
effect after the date of this Agreement or if compliance by the Bank with any
direction, request or requirement (whether or not having the force of law) of
any competent governmental or other authority shall:
(a) subject the Bank to Taxes or change the basis of Taxation of the Bank
with respect to any payment under this Agreement (other than Taxes or Taxation
on the overall net income of the Bank imposed in the jurisdiction in which its
principal office or lending office hereunder is located); or
(b) impose, modify or deem applicable any reserve requirements or require
the making of any special deposits against or in respect of any assets or
liabilities of deposits with or for the account of, or loans by, the Bank; or
(c) impose on the Bank any other condition with respect to this Agreement
or its obligations hereunder and, as a result of any of the foregoing, the cost
to the Bank of making or keeping the Commitment available for advance or
maintaining or funding the Loan is increased or the amount payable or the
effective return to the Bank under this Agreement is reduced or the Bank makes a
payment or forgoes a return on or calculated by reference to any amount payable
to it under this Agreement, then and in each such case:
(i) on demand the Borrower shall pay to the Bank the amount which the
Bank specifies (in a certificate setting forth the basis of the computation of
such amount which certificate shall be conclusive and binding on the Borrower
save for manifest error) to be required to compensate the Bank for such
increased cost, reduction, payment or forgone return; and
(ii) the Borrower may, at any time after receipt of such demand and
certificate notify the Bank that they will prepay all (but not part only) of the
Loan whereupon the Borrower shall prepay the Loan to the Bank in accordance with
and subject to the provisions of Clause 12.05.
Any demand under Clause 12.03 (i) may be made at any time before or within 12
months after the end of any Interest Period to which such demand relates whether
or not the Loan has been repaid.
21
12.04 (a) If and whenever, at any time prior to the commencement of any Interest
Period the Bank shall have determined (which determination shall, in the absence
of manifest error, be conclusive) that:
(1) adequate and fair means do not exist for ascertaining the rate of
interest during such Interest Period pursuant to Clause 3.01; or
(2) deposits in Dollars are not available to the Bank in the London
interbank eurocurrency deposit market in sufficient amounts in the ordinary
course of business for such Interest Period; or
(3) by reason of circumstances affecting the London interbank eurocurrency
deposit market generally it is impracticable for the Bank to fund or continue to
fund the Loan during such Interest Period;
the Bank shall forthwith give notice of such determination to the Borrower.
(b) During the period of 14 days after any notice has been given by the Bank
under Clause 12.04 (a), the Bank shall certify (having consulted with the
Borrower) an alternative basis ("the Substitute Basis") for the continuance of
the Loan. The Substitute Basis may (without limitation) include alternative
interest periods, alternative currencies or alternative rates of interest but
shall include a margin above the cost of funds to the Bank or equivalent to the
Margin. The Substitute Basis shall be binding upon the Borrower and shall be
retroactive to and take effect in accordance with its terms from the date
specified in the notice given by the Bank. During the period when a Substitute
Basis is in force the Borrower and the Bank shall consult not less frequently
than once every 30 days with a view to reverting to the normal provisions of
this Agreement as soon as practicable.
(c) If the Borrower determines within 14 days of receipt of such certificate
that it does not wish to continue to borrow the Loan it shall forthwith notify
the Bank whereupon the Borrower shall forthwith prepay the Loan in accordance
with and subject to the provisions of Clauses 12.04 and 12.05 together with
accrued interest to the date of prepayment, calculated from the date specified
in the notice given by the Bank at a rate per annum equal to the rate certified
by the Bank to be an interest rate equivalent to the cost to the Bank of funding
the Loan during the period commencing on the date specified in the notice given
by the Bank and ending on the date of prepayment plus the Margin.
12.05 When the Loan is to be prepaid by the Borrower pursuant to this Clause 12
the Borrower shall, at the time of such prepayment, pay to the Bank accrued
interest thereon to the date of actual payment, any additional amount payable
under Clause 12.03 and all other sums payable by the Borrower to the Bank
pursuant to this Agreement, including, without limitation, any amounts payable
under Clause 11.
22
13.- SET-OFF SECURITY
13.01 All monies received by the Bank under or pursuant to any of the Security
Documents and expressed to be applicable in accordance with the provisions of
this Clause 13.01 shall be applied by the Bank in the following manner:
(a) first in or towards payment of all sums other than principal or
interest which may be due and payable to the Bank under this Agreement and the
Security Documents or any of them;
(b) secondly in or towards any arrears of interest due and payable in
respect of the Loan or any part thereof;
(c) thirdly in or towards repayment of the Loan;
(d) fourthly the surplus (if any) shall be paid to the Borrower or to
whomsoever else may be entitled to receive such surplus.
13.02 The Borrower hereby authorises the Bank without prejudice to any of the
Bank's rights at law, in equity or otherwise, at any time in the Event of
Default and without notice to the Borrower:
(a) to apply any credit balance standing upon any account of the Borrower
with any branch of the Bank and in whatever currency in or towards satisfaction
of any sum due to the Bank under this Agreement and/or any of the Security
Documents;
(b) in the name of the Borrower and/or the Bank to do all such acts and
execute all such documents as may be necessary or expedient to effect such
application; and
(c) to combine and/or consolidate all or any accounts in the name of the
Borrower with the Bank.
13.03 The Borrower hereby covenants and undertakes that the Security Documents
shall both at the date of execution and delivery thereof and so long as any
monies are owing under this Agreement or thereunder be valid and binding
obligations of the respective parties thereto and rights, of the Bank
enforceable in accordance with their respective terms and that they will, at
their expense, execute, perfect and do any and every such further assurance,
document, act or thing as in the reasonable opinion of the Bank may be necessary
or desirable for perfecting the security contemplated or constituted by the
Security Documents.
14.- ASSIGNMENT AND LENDING OFFICES
14.01 This Agreement shall be binding upon, and ensure for the benefit of, the
Bank and the Borrower and its respective successors.
23
14.02 The Borrower may not assign or transfer any of its rights or obligations
under this Agreement.
14.03 The Bank may assign or transfer all or any part of its rights, benefits or
obligations under this Agreement to any one or more banks or other financial
institutions (each of which is called an "Assignee" for the purposes of this
Clause 14).
Provided that any assignment or transfer of all or part of the Bank's
rights or benefits under this Agreement shall not cause the Borrower to be
required to pay any additional amounts under the provisions of Clauses 5 and 6
as at the date of such assignment or transfer except where any such payment had
already, or would already have, become due to the Bank under such provisions as
at such date.
Any assignment or transfer of all or part of the Bank's rights or benefits
under this Agreement may only be effected with the prior written consent of the
Borrower such consent not to be unreasonably withheld unless the assignee or the
transferee shall be a subsidiary or the holding company of the Bank or a
subsidiary of such holding company in which case no such consent shall be
required but written notice of such assignment or transfer shall be given to the
Borrower.
14.04 If the Bank assigns or transfers its rights, benefits or obligations as
provided in Clause 14.03 all relevant references in this Agreement to the Bank
shall thereafter be construed as a reference to the Bank and/or its assignee(s)
and/or its transferee(s) to the extent of their respective interests and, in the
case of an assignment or transfer of all or part of the Bank's obligations, the
Borrower shall thereafter look only to the assignee or transferee in respect of
that proportion of the Bank's obligations hereunder as corresponds to the
obligations assumed by such assignee or transferee.
14.05 The Bank shall lend initially through its office at Piraeus and
subsequently through any other office of the Bank selected from time to time by
it through which the Bank wishes to lend for the purposes of this Agreement. If
the office through which the Bank is lending is changed pursuant to this Clause
14.05, the Bank shall notify the Borrower promptly of such change.
14.06 The Bank may disclose to a potential assignee, transferee or to any other
person who may propose entering into contractual relations with the Bank in
relation to this Agreement such information about the Borrower as the Bank shall
consider appropriate subject to the duty of confidentiality.
15.- NOTICES AND OTHER MATTERS
15.01 Every notice, request, demand or other communication under this Agreement
shall be in writing delivered personally or by registered letter or by telex or
fax. Every notice, request, demand or communication shall, subject as
24
otherwise provided in this Agreement, be deemed to have been received, in the
case of a telex or fax at the time of despatch thereof (provided that if the
date of despatch is not a Banking Day in the country of the addressee it shall
be deemed to have been received at the opening of business on the next such
Banking Day) and in the case of a letter when delivered personally or 3 days
after it has been put in to the post.
15.02 Every notice, request, demand or other communication shall be sent:
(1) to the Borrower at:
c/o Eurobulk Ltd
Aethrion Xxxxxx
00, Xx. Xxxxxxxxxxxx Xxx.
000 00 Xxxxxxxx, Xxxxxx
Fax: 000 0000
Tel.: 000 0000
(2) to the Bank at:
00, Xxxx Xxxxxxx
000 00 Xxxxxxx, Xxxxxx
Attention: The Manager
Tel: 0000 000
Fax: 0000 000
Telex. 211788
or such other address or telex number as is notified by one party to the other
party hereunder.
15.03 Process Agent.
Xx. Xxxxxxx Xxxxxx, resident of 0-0, Xxxxxxxx xxxxxx, Xxxxxx, Xxxxxx, is hereby
appointed by the Borrower as agent to accept service (hereinafter "Process
Agent") upon whom any judicial process may be served and any notice, request,
demand or other communication under this Agreement or any of the Security
Documents. In the event that the Process Agent (or any substitute process agent
notified to the Bank in accordance with the foregoing) cannot be found at the
address specified above (or, as the case may be notified to the Bank), which
will be conclusively proved by a deed of a process server to the effect that the
Process Agent was not found to that address, any process notice, request, demand
or other communication to be sent to any Security Party may be validly effected
upon the District Attorney of the First Instance, Court of Piraeus.
25
15.04 No failure or delay on the part of the Bank to exercise any power, right
or remedy under this Agreement and/or any of the Security Documents shall
operate as a waiver thereof, nor shall any single or partial exercise by the
Bank of any power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy. The remedies
provided herein and in the Security Documents are cumulative and are not
exclusive of any remedies provided by law.
15.05 All certificates, instruments and other documents to be delivered under or
supplied in connection with this Agreement shall be in the English language or
shall attach a certified English translation thereof, which translation shall be
the governing version.
15.06 Any provision of this Agreement prohibited by or unlawful or unenforceable
under any applicable law actually applied by any court of competent jurisdiction
shall, to the extent required by such law, be severed from this Agreement and
rendered ineffective so far as is possible without modifying the remaining
provisions of this Agreement. Where however the provisions of any such
applicable law may be waived, they are hereby waived by the parties hereto to
the full extent permitted by such law to the end that this Agreement shall be a
valid and binding agreement enforceable in accordance with its terms.
16.- LAW AND JURISDICTION
16.01 This Agreement shall be governed by and construed in accordance with the
laws of England.
16.02 For the exclusive benefit of the Bank, the Borrower hereby irrevocably
submits to the non-exclusive jurisdiction of the High Court of Justice in
London, England. Further the Borrower agrees that any summons, writ or other
legal process issued against it in England shall be served upon Messrs. HILL
XXXXXX XXXXXXXXX, currently located at Xxxxxxxx Xxxxx, Xxxx'x Xxxxx, Xxxxxx XX0X
0XX, Xxxxxx Xxxxxxx (tel.: 0044207-2839033, fax: 0044207-2831144) or their
successors, who are hereby authorised to accept such service which shall be
deemed to be good service on the Borrower.
16.03 The Borrower further irrevocably agrees that the Courts of Piraeus,
Greece, shall have jurisdiction over any proceedings arising hereunder and
hereby irrevocably submit to the jurisdiction of such courts for such purpose.
16.04 Nothing herein shall limit the right of the parties to take proceedings in
any other court of competent jurisdiction, whether concurrently or not.
16.05 To the extent that the Borrower or any of its property may in any
jurisdiction enjoy or be entitled to exemption or immunity from any legal
process (including without limitation any relief or execution) the Borrower
hereby irrevocably agrees not to claim or invoke and hereby irrevocably waives
26
such exemption or immunity to the full extent permitted by the law of such
jurisdiction.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
Signed by /s/ Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxx Xxxxxxx ----------------------------------------
for and on behalf of
OCEANOPERA SHIPPING LIMITED
in the presence of:
/s/ XXXX XXXXXX
-------------------------------------
XXXX XXXXXX
XXXXXXXX-XX-XXX
00 XXXXXX XXX. - 00000 XXXXXXX - XXXXXX
TEL.: (30.1) 0000000 - FAX: (30.1) 0000000
Signed by /s/ Gerassimos Mendoros
Gerassimos Mendoros ----------------------------------------
for and on behalf of
HSBC BANK PLC
in the presence of:
/s/ XXXX XXXXXX
-------------------------------------
XXXX XXXXXX
XXXXXXXX-XX-XXX
00 XXXXXX XXX. - 00000 XXXXXXX - XXXXXX
TEL.: (30.1) 0000000 - FAX: (30.1) 0000000
27
SCHEDULE 1
Form of Drawdown Notice
(referred to in Clause 2.02)
To: HSBC BANK plc
U.S. $ 3.200.000 Floating Rate
Loan Agreement dated
We refer to the above Loan Agreement and hereby:
(l) give you notice that we wish you to advance U.S. $ 3.200.000 to us on and
select a first Interest Period in respect thereof of ________ months the first
Interest Period to expire on ________ The above amount to be credited to the
Account: _________________
(2) confirm that:
(i) no event or circumstance has occurred and is continuing which
constitutes, or which with the giving of notice or lapse of time or both would
constitute an Event of Default under the Loan Agreement;
(ii) the representations and warranties contained in Clause 7 of the Loan
Agreement are true and correct at the date hereof as if made with respect to the
facts and circumstances existing at such date;
(iii) the borrowing to be effected by such advance will be within our
corporate powers, has been validly authorised by appropriate corporate action
and will not cause any limit on our borrowings (whether imposed by statute,
regulation, agreement or otherwise) to be exceeded;
(iv) there has been no material adverse change in our financial position
from that set forth in our financial statements in respect of the financial year
ended on ________ and there has been no material adverse change in the operation
of the Vessel since __________
SIGNED by
for and on behalf of
/s/ Xxxxx Xxxxxxxx Xxxxxxx
-------------------------------------
OCEANOPERA SHIPPING LIMITED
28
SCHEDULE 2
Documents and evidence required
as conditions precedent
PART 1
(a) copy of all documents which contain or establish or relate to the
constitution of the Borrower including transfer of shares and election of
Board of Directors.
(b) Resolutions duly passed at meeting(s) of the Board of Directors and
Shareholders of the Borrower duly convened and held approving the Loan Agreement
and the Security Documents and authorising their signature, delivery and
performance.
(c) an opinion of the Law Office of Xxxxx Xxxxxxxxxxxxxx special legal advisers
in Greece to the Bank and an opinion of the Borrower's Lawyer.
(d) there has been no material adverse change in the financial conditions and/or
operations of the Borrower and/or the Guarantor.
PART 2
(a) evidence that the Vessel:
(i) is registered in the name of the Borrower free of encumbrances other
than Permitted Encumbrances.
(ii) is classed highest with its respective Classification Society, such
Classification Society to be acceptable to the Bank.
(iii) is insured in accordance with the provisions of the Mortgage, the
Deed of Covenants and the Assignment and all requirements of the Mortgage, the
Deed of Covenants and the Assignment in respect of such insurances have been
complied with.
(b) The following Security Documents duly executed:
(i) Personal Guarantee duly executed by the Personal Guarantor;
(ii) First Statutory Cypriot Mortgage and Deed of Covenant including the
Assignment of Insurances and Earnings of the Vessel on m/v "NIKOLAOS P".
(c) evidence that the Mortgage has been registered against the Vessel.
