Date June 2008 PARAGON SHIPPING INC. as Borrower - and - THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders - and - THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 2 as Swap Banks - and - THE GOVERNOR AND COMPANY OF THE BANK...
Date June
2008
as
Borrower
- and
-
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
- and
-
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 2
as Swap
Banks
- and
-
THE
GOVERNOR AND COMPANY OF
THE
BANK OF IRELAND
as
Arranger, Agent and
Security
Trustee
__________________________________
__________________________________
relating
to a revolving credit facility
of up to
US$30,000,000 to refinance existing indebtedness
secured
against m.v. “KIND SEAS”
CONSTANT
& CONSTANT
2,
Defteras Merarchias
185 35
Piraeus
Greece
INDEX
| CLAUSE NO. |
PAGE
NO.
|
|
|
1
|
INTERPRETATION
|
1
|
|
2
|
FACILITY
|
14
|
|
3
|
POSITION
OF THE LENDERS AND THE SWAP BANKS
|
14
|
|
4
|
DRAWDOWN
|
15
|
|
5
|
INTEREST
|
16
|
|
6
|
INTEREST
PERIODS
|
18
|
|
7
|
DEFAULT
INTEREST
|
18
|
|
8
|
REPAYMENT
AND PREPAYMENT
|
19
|
|
9
|
CONDITIONS
PRECEDENT
|
21
|
|
10
|
REPRESENTATIONS
AND WARRANTIES
|
21
|
|
11
|
GENERAL
UNDERTAKINGS
|
23
|
|
12
|
CORPORATE
UNDERTAKINGS
|
26
|
|
13
|
INSURANCE
|
27
|
|
14
|
SHIP
COVENANTS
|
31
|
|
15
|
SECURITY
COVER
|
35
|
|
16
|
PAYMENTS
AND CALCULATIONS
|
36
|
|
17
|
APPLICATION
OF RECEIPTS
|
38
|
|
18
|
APPLICATION
OF EARNINGS
|
39
|
|
19
|
EVENTS
OF DEFAULT
|
39
|
|
20
|
FEES
AND EXPENSES
|
43
|
|
21
|
INDEMNITIES
|
44
|
|
22
|
NO
SET-OFF OR TAX DEDUCTION
|
46
|
|
23
|
ILLEGALITY,
ETC
|
46
|
|
24
|
INCREASED
COSTS
|
47
|
|
25
|
SET
OFF
|
48
|
|
26
|
TRANSFERS
AND CHANGES IN LENDING OFFICES
|
49
|
|
27
|
VARIATIONS
AND WAIVERS
|
51
|
|
28
|
NOTICES
|
52
|
|
29
|
SUPPLEMENTAL
|
54
|
|
30
|
LAW
AND JURISDICTION
|
54
|
|
SCHEDULE
1 LENDERS AND COMMITMENTS
|
56
|
|
|
SCHEDULE
2 SWAP BANKS
|
57
|
|
|
SCHEDULE
3 DRAWDOWN NOTICE
|
58
|
|
|
SCHEDULE
4 CONDITION PRECEDENT DOCUMENTS
|
59
|
|
|
SCHEDULE
5 TRANSFER CERTIFICATE
|
61
|
|
|
SCHEDULE
6 FORM OF COMPLIANCE CERTIFICATE
|
67
|
|
|
EXECUTION
PAGES
|
66
|
|
THIS LOAN AGREEMENT is made
on June
2008
BETWEEN:
|
(1)
|
PARAGON SHIPPING
INC., being a
corporation incorporated in the Xxxxxxxx Islands whose registered office
is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The
Xxxxxxxx Islands MH 96960 as Borrower;
|
|
(2)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1, as Lenders;
|
|
(3)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 2, as Swap
Banks;
|
|
(4)
|
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND, acting through its office at Head Office A3, Lower
Baggot Street, Dublin 2, Ireland, as Arranger;
and
|
|
(5)
|
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND, acting through its office at Head Office A3, Lower
Baggot Street, Dublin 2, Ireland, as Agent;
and
|
|
(6)
|
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND, acting through its office at Head Office A3, Lower
Baggot Street, Dublin 2, Ireland, as Security
Trustee.
|
WHEREAS
|
(A)
|
The
Lenders have agreed to make available to the Borrower a revolving credit
facility of up to the lesser of (a) US$30,000,000 and (b) 50% of the Fair
Market Value of the Ship, for the purpose of refinancing the Existing
Indebtedness secured against the
Ship.
|
|
(B)
|
The
Swap Banks have agreed to enter into interest rate swap transactions with
the Borrower from time to time to hedge the Borrower's exposure under this
Agreement to interest rate
fluctuations.
|
|
(C)
|
The
Lenders have agreed with the Swap Banks that the Swap Banks will share in
the security to be granted to the Security Trustee pursuant to this
Agreement on a subordinated basis.
|
IT IS AGREED as
follows:
|
1
|
INTERPRETATION
|
|
1.1
|
Definitions. Subject
to Clause 1.5, in this Agreement:
|
“Account Security Deed” means
the deed or deeds creating security over the Operating Account, to be executed
by the Corporate Guarantor in favour of the Security Trustee, in such form as
the Lenders may approve or require;
|
|
“Advance” means
the principal amount of each borrowing by the Borrower under this
Agreement;
|
|
|
“Affected Lender” has the
meaning given in Clause 5.5;
|
|
|
“Agency and Trust
Agreement” means the agency and trust agreement executed
or to be executed between the Borrower, the Lenders, the Swap Banks, the
Agent and the Security Trustee, in such form as the Lenders may approve or
require;
|
“Agent” means The
Governor and Company of the Bank of Ireland acting through its office at Head
Office A3, Lower Baggot Street, Dublin 2, Ireland or any successor of it
appointed under clause 5 of the Agency and Trust Agreement;
|
|
“Applicable Accounts” means, as at
the date of calculation or, as the case may be, in respect of an
accounting period, the annual audited consolidated accounts and financial
statements of the Group or the quarterly unaudited accounts and financial
statements of the Group, in each case, which the Borrower is obliged to
deliver to the Agent pursuant to Clause
11.5;
|
“Approved
Manager” means Allseas Marine S.A., a company incorporated in
Liberia whose registered office is at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, or any
other company which the Agent may, with the authorisation of the Majority
Lenders, approve from time to time as the commercial and technical manager of
the Ship;
|
|
“Approved Manager’s
Undertaking” means a letter of undertaking executed by
the Approved Manager in favour of the Security Trustee in the terms
required by the Security Trustee, agreeing certain matters in relation to
the Approved Manager and subordinating the rights of the Approved Manager
against the Ship and the Corporate Guarantor to the rights of the Creditor
Parties under the Finance Documents, in such form as the Lenders may
approve or require;
|
|
|
“Approved
Flag” means the Republic of the Xxxxxxxx Islands flag or
such other flag as the Agent may, in sole and absolute discretion, approve
as the flag on which the Ship shall be
registered;
|
|
|
“Approved Flag
State” means the Republic of the Xxxxxxxx Islands or any
other country in which the Agent may in its sole and absolute discretion,
approve that the Ship be
registered;
|
“Arranger” means The Governor
and Company of the Bank of Ireland, acting through its office at Head Office A3,
Lower Baggot Street, Dublin 2, Ireland;
|
|
“Availability
Period” means the period commencing on the date of this
Agreement and ending on:
|
|
|
(a)
|
the
date falling one (1) month thereafter;
or
|
|
|
(b)
|
if
earlier, the date on which the Total Commitments are fully cancelled or
terminated;
|
“Available Commitment” means,
in relation to a Lender and at any time, its Commitment less its Contribution at
that time (and “Total Available
Commitments” means the aggregate of the Available Commitments of all the
Lenders);
|
|
“Borrower” means Paragon
Shipping Inc., a company incorporated in the Xxxxxxxx Islands whose
registered office is at Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, The Xxxxxxxx Islands MH
96960;
|
|
|
“Business
Day” means a day on which banks are open in London,
Dublin, Athens and (in respect of a day on which a payment is required to
be made under a Finance Document) also in New York
City;
|
|
|
“Commitment” means,
in relation to a Lender, the amount set opposite its name in Schedule 1,
or, as the case may require, the amount specified in the relevant Transfer
Certificate, as that amount may be reduced, cancelled or terminated in
accordance with this Agreement (and “Total Commitments” means
the aggregate of the Commitments of all the
Lenders);
|
“Confirmation” and “Early Termination Date”, in
relation to any continuing Designated Transaction, have the meanings given in
the relevant Master Agreement;
2
|
|
“Contractual Currency”
has the meaning given in Clause
21.5;
|
|
|
“Contribution” means,
in relation to a Lender, the part of the Loan which is owing to that
Lender;
|
|
|
“Corporate
Guarantee” means the guarantee to be given by the
Corporate Guarantor in favour of the Security Trustee, in such form as the
Lenders may approve or require;
|
|
|
“Corporate
Guarantor” means Fairplay Maritime Ltd., a company
incorporated in the Xxxxxxxx Islands, whose registered office is at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Xxxxxxxx
Islands MH 96960;
|
|
|
“Creditor
Party” means the Agent, the Security Trustee, any Lender
or any Swap Bank, whether as at the date of this Agreement or at any later
time;
|
“Designated Transaction” means
a Transaction which fulfils the following requirements:
|
|
(a)
|
it
is entered into by the Borrower pursuant to a Master Agreement with a Swap
Bank which, at the time the Transaction is entered into, is also a
Lender;
|
|
|
(b)
|
its
purpose is the hedging of the Borrower's exposure under this Agreement to
fluctuations in LIBOR arising from the funding of the Loan (or any part
thereof) for a period expiring no later than the final Termination Date;
and
|
|
|
(c)
|
it
is designated by the Borrower, by delivery by the Borrower to the Agent of
a notice of designation, as a Designated Transaction for the purposes of
the Finance Documents;
|
|
|
“Dollars” and “$” means the
lawful currency for the time being of the United States of
America;
|
|
|
“Drawdown
Date” means, in relation to an Advance, the date
requested by the Borrower for the Advance to be made, or (as the context
requires) the date on which the Advance is actually
made;
|
|
|
“Drawdown
Notice” means a notice in the form set out in Schedule 3
(or in any other form which the Agent approves or reasonably
requires);
|
|
|
“Earnings” means
all moneys whatsoever which are now, or later become, payable (actually or
contingently) to the owner of the Ship or the Security Trustee and which
arise out of the use or operation of the Ship, including (but not limited
to):
|
|
|
(a)
|
all
freight, hire and passage moneys, compensation payable to the owner of the
Ship or the Security Trustee in the event of requisition of the 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
the Ship;
|
|
|
(b)
|
all
moneys which are at any time payable under Insurances in respect of loss
of earnings; and
|
|
|
(c)
|
if
and whenever the 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 the
Ship;
|
3
“EBITDA” means, as at the date
of calculation or, as the case may be, 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 Expenses; and
|
|
|
(iii)
|
depreciation,
depletion, amortisation of intangibles and other non-cash charges or
non-cash losses (including non-cash transaction expenses and the
amortisation of debt discounts) and any extraordinary losses not incurred
in the ordinary course of business;
|
|
|
(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 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 in the Applicable
Accounts;
|
|
“Environmental
Claim” means:
|
|
|
(a)
|
any
claim by any governmental, judicial or regulatory authority which arises
out of an Environmental Incident or an alleged Environmental Incident or
which relates to any Environmental Law;
or
|
|
|
(b)
|
any
claim by any other person which relates to an Environmental Incident or to
an alleged Environmental Incident,
|
|
|
and
“claim” means a
claim for damages, compensation, fines, penalties or any other payment of
any kind whether or not similar to the foregoing; an order or direction to
take, or not to take, certain action or to desist from or suspend certain
action; and any form of enforcement or regulatory action, including the
arrest or attachment of any asset;
|
|
|
“Environmental
Incident” means:
|
|
|
(a)
|
any
release of Environmentally Sensitive Material from the Ship;
or
|
|
|
(b)
|
any
incident in which Environmentally Sensitive Material is released from a
vessel other than the Ship and which involves a collision between the Ship
and such other vessel or some other incident of navigation or operation,
in either case, in connection with which the Ship is actually or
potentially liable to be arrested, attached, detained or injuncted and/or
the Ship or the owner of the Ship and/or any operator or manager is at
fault or allegedly at fault or otherwise liable to any legal or
administrative action; or
|
|
|
(c)
|
any
other incident in which Environmentally Sensitive Material is released
otherwise than from the Ship and in connection with which the Ship is
actually or potentially liable to be arrested and/or where the owner of
the Ship and/or any operator or manager of the Ship is at fault or
allegedly at fault or otherwise liable to any legal or administrative
action;
|
|
|
“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;
|
4
|
|
“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;
|
|
|
“Event of
Default” means any of the events or circumstances
described in Clause 19.1;
|
|
|
“Existing Indebtedness”
means all sums owing by the Borrower to Commerzbank AG under the loan
agreement dated 29 November 2007;
|
|
|
“Fair Market Value”
means the market value of the Ship (and, where required, each Fleet
Vessel) determined from time to time in accordance with Clause
15.4;
|
|
|
“Finance
Documents” means:
|
|
|
(a)
|
this
Agreement;
|
|
|
(b)
|
the
Agency and Trust Agreement;
|
|
|
(c)
|
the
Corporate Guarantee;
|
|
|
(d)
|
the
Mortgage;
|
|
|
(e)
|
the
General Assignment;
|
|
|
(f)
|
the
Account Security Deed;
|
|
|
(g)
|
the
Approved Manager’s Undertaking;
|
|
|
(h)
|
the
Master Agreement;
|
|
|
(i)
|
the
Master Agreement Assignment; and
|
|
|
(j)
|
any
other document (whether creating a Security Interest or not) which is
executed at any time by the Borrower or the Corporate Guarantor or any
other person as security for, or to establish any form of subordination or
priorities arrangement in relation to, any amount payable to the Lenders
and/or the Swap Banks 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 loan stock, 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
|
5
|
|
(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 1 year commencing on 1 January in respect
of which its consolidated accounts are or ought to be prepared;
“Fleet Vessels” means,
together, all of the vessels (including, but not limited to, the Ships) from
time to time owned by members of the Group;
“GAAP” means generally accepted
accounting principles as from time to time in effect in the United States of
America;
|
|
“General
Assignment” means a general assignment of the Earnings,
the Insurances and any Requisition Compensation of the Ship to be executed
by the Corporate Guarantor in favour of the Security Trustee, in such form
as the Lenders may approve or
require;
|
“Group” means the Borrower and
its subsidiaries (whether direct or indirect) from time to time during the
Security Period and “member of the Group” shall be
construed accordingly;
|
|
“Insurances” means:
|
|
|
(a)
|
all
policies and contracts of insurance, including entries of the Ship in any
protection and indemnity or war risks association, which are effected in
respect of the 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;
|
|
|
“Interest
Period” means, in relation to an Advance, a period
determined in accordance with Clause
6;
|
“ISM Code” means the
International Safety Management Code (including the guidelines on its
implementation), adopted by the International Maritime Organisation Assembly as
Resolutions A.741 (18) (as amended by MSC 104 (73)) and A.913(22) (superseding
Resolution A.788(19)), as the same may be amended, supplemented or superseded
from time to time (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);
“ISPS Code” means the
International Ship and Port Facility Security Code adopted by the International
Maritime Organisation (as the same may be amended, supplemented or superseded
from time to time);
“ISSC” means a valid and
current International Ship Security Certificate issued under the ISPS
Code;
|
|
“Lender” means,
subject to Clause 26.6:
|
|
|
(a)
|
a
bank or financial institution listed in Schedule 1 and acting through its
branch indicated in Schedule 1 (or through another branch notified to the
Borrower under Clause 26.14) unless it has delivered a Transfer
Certificate or Certificates covering the entire amounts of its Commitment
and its Contribution; and
|
6
|
|
(b)
|
the
holder for the time being of a Transfer
Certificate;
|
“Leverage Ratio” means, at any
relevant time, the ratio (expressed as a percentage) of:
|
|
(a)
|
the
Total Liabilities (including, without limitation, all amounts outstanding
from time to time under this Agreement, the Master Agreement and the other
Finance Documents); and
|
|
|
(b)
|
the
Market Value Adjusted Total Assets (including, without limitation, the
Ship);
|
|
|
“LIBOR” means,
for an Interest Period:
|
|
|
(a)
|
the
rate per annum equal to the offered quotation for deposits in Dollars for
a period equal to, or as near as possible equal to, the relevant Interest
Period which appears on REUTERS BBA Page LIBOR 1 at or about 11.00 a.m.
(London time) on the Quotation Date prior to the commencement of that
Interest Period (and, for the purposes of this Agreement, “REUTERS BBA
Page LIBOR 1” means the display designated as “REUTERS BBA Page LIBOR 1”
on the Telerate Service or such other page as may replace REUTERS BBA Page
LIBOR 1 on that service for the purpose of displaying rates comparable to
that rate) or on such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of
displaying the British Bankers' Association Interest Settlement Rates for
Dollars; or
|
|
|
(b)
|
if
no rate is quoted on REUTERS BBA Page LIBOR 1, the rate per annum
determined by the Agent to be the arithmetic mean (rounded upwards, if
necessary, to the nearest one-sixteenth of one per cent.) of the rates per
annum determined by the Agent as the rate at which deposits in Dollars are
offered to that the Agent by leading banks in the London Interbank Market
at the Agent’s request at or about 11.00 a.m. (London time) on the
Quotation Date for that Interest Period for a period equal to that
Interest Period and for delivery on the first Business Day of
it;
|
“Liquid
Assets” means, at any relevant time hereunder, the aggregate
of:
|
|
(a)
|
cash
in hand or held with banks or other financial institutions of the Borrower
and/or any other member of the Group (other than restricted cash) in
Dollars or another currency freely convertible into
Dollars;
|
|
|
(b)
|
the
market value of transferable certificates of deposit in a freely
convertible currency acceptable to the Lenders (being for the purposes of
this Agreement, Dollars, Japanese Yen, Swiss Francs, Euros or Sterling)
issued by a prime international bank;
and
|
|
|
(c)
|
the
market value of equity securities (if and to the extent that the Agent is
satisfied that such equity securities are readily saleable for cash and
that there is a ready market therefor) and investment grade debt
securities which are publicly traded on a major stock exchange or
investment market (valued at market value as at any applicable date of
determination);
|
in each
case owned by the Borrower or any other member of the Group where:
|
|
(i)
|
the
market value of any asset specified in paragraph (b) and (c) shall be the
bid price quoted for it on the relevant calculation date by the Agent;
and
|
7
|
|
(ii)
|
the
amount or value of any asset denominated in a currency other than Dollars
shall be converted into Dollars using the Agent’s spot rate for the
purchase of Dollars with that currency on the relevant calculation
date;
|
|
|
“Loan” means the
principal amount for the time being outstanding under this
Agreement;
|
|
|
“Major
Casualty” means any casualty to the 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
$350,000 or the equivalent in any other
currency;
|
|
|
“Majority
Lenders” means:
|
|
|
(a)
|
before
an Advance has been made, Lenders whose Commitments total 66 2/3 per cent.
of the Total Commitments; and
|
|
|
(b)
|
after
an Advance has been made, Xxxxxxx whose Contributions total 66 2/3 per
cent. of the Loan;
|
|
|
“Margin” means
one point two zero per cent (1.20%) per
annum;
|
“Market Value Adjusted Net
Worth” means Paid-Up Capital plus General Reserves plus Retained Earnings
adjusted to reflect the difference between the book values of the Fleet Vessels
and the Market Values of all Fleet Vessels at any relevant time;
“Market Value Adjusted Total
Assets” means, at any time, Total Assets adjusted to reflect
the difference between the book values of all Fleet Vessels and the aggregate
Market Value of all Fleet Vessels and lease transactions relating to any Fleet
Vessels;
“Master Agreement” means each
master agreement (on the 1992 ISDA (Multicurrency - Crossborder) form) made
between the Borrower and a Swap Bank and includes all Designated Transactions
from time to time entered into and Confirmations from time to time exchanged
under the master agreement;
“Master Agreement Assignment”
means, in relation to each Master Agreement, the assignment of the Master
Agreement in favour of the Security Trustee, in such form as the Lenders may
approve or require;
“Mortgage” means the
first priority ship mortgage to be executed by the Corporate Guarantor in favour
of the Security Trustee on the Ship under the Approved Flag (and deed of
covenant collateral thereto if applicable), in such form as the Lenders may
approve or require;
|
|
“Negotiation Period” has
the meaning given in Clause 5.8;
|
“Net Interest
Expenses” means, in respect of any relevant period, 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 that 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 in the Applicable Accounts;
|
|
“Notifying Lender” has
the meaning given in Clause 23.1 or Clause 24.1 as the context
requires;
|
“Operating Account” means an
account in the name of the Corporate Guarantor with the Agent in Dublin
designated “Fairplay Maritime Ltd. - Operating Account”, or any other account
(with that or another office of the Agent or with a bank or financial
institution other than the Agent) which is designated by the Agent as the
Operating Account for the purposes of this Agreement;
8
“Paid-Up Capital”, “General Reserves” and “Retained Earnings” have the meanings
ascribed to them in the Applicable Accounts;
|
|
“Payment Currency” has
the meaning given in Clause 21.5;
|
|
|
“Permitted Security
Interests” means:
|
|
|
(a)
|
Security
Interests created by the Finance
Documents;
|
|
|
(b)
|
liens
for unpaid crew’s wages in accordance with usual maritime
practice;
|
|
|
(c)
|
liens
for salvage;
|
|
|
(d)
|
liens
arising by operation of law for not more than 2 months’ prepaid hire
under any charter in relation to the 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 the Ship, provided such
liens do not secure amounts more than 30 days overdue (unless the
overdue amount is being contested by the owner of the Ship in good faith
by appropriate steps) and subject, in the case of liens for repair or
maintenance, to
Clause 14.13(g);
|
|
|
(f)
|
any
Security Interest created in favour 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 the Corporate
Guarantor is prosecuting or defending such action in good faith by
appropriate steps; and
|
|
|
(g)
|
Security
Interests arising by operation of law in respect of taxes which are not
overdue for payment other than taxes being contested in good faith by
appropriate steps and in respect of which appropriate reserves have been
made;
|
|
|
“Pertinent Jurisdiction”,
in relation to a company, means:
|
|
|
(a)
|
England
and Wales;
|
|
|
(b)
|
the
country under the laws of which the company is incorporated or
formed;
|
|
|
(c)
|
a
country in which the company's central management and control is or has
recently been exercised;
|
|
|
(d)
|
a
country in which the overall net income of the company is subject to
corporation tax, income tax or any similar
tax;
|
|
|
(e)
|
a
country in which assets of the company (other than securities issued by,
or loans to, related companies) having a substantial value 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;
and
|
|
|
(f)
|
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;
|
|
|
“Potential Event of
Default” means an event or circumstance which, with the
giving of any notice, the lapse of time, a determination of the Majority
Lenders and/or the satisfaction of any other condition, would constitute
an Event of Default;
|
9
“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;
|
|
“Relevant Person” has the
meaning given in Clause 19.9;
|
|
|
“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”;
|
|
|
“Secured
Liabilities” means all liabilities which the Borrower,
the Security Parties 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 (whether fixed or floating) 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
step 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 (c) 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
Party” means the Corporate Guarantor, the Approved
Manager and any other person (except a Creditor Party) who, as a surety or
mortgagor, as a party to any subordination or priorities arrangement, or
in any similar capacity, executes a document falling within paragraph (i)
of the definition of “Finance
Documents”;
|
|
|
“Security
Period” means the period commencing on the date of this
Agreement and ending on the date on which the Agent notifies the Borrower,
the Security Parties and the Lenders
that:
|
|
|
(a)
|
all
amounts which have become due for payment by the Borrower or any Security
Party 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;
|
|
|
(c)
|
neither
the Borrower nor any Security Party has any future or contingent liability
under Clause 20, 21 or 22 below or any other provision of this Agreement
or another Finance Document; and
|
|
|
(d)
|
the
Agent, the Security Trustee and the Majority Lenders do not consider that
there is a significant risk that any payment or transaction under a
Finance Document would be set aside, or would have to be reversed or
adjusted, in any present or possible future bankruptcy of the Borrower or
a Security Party or in any present or possible future proceeding relating
to a Finance Document or any asset covered (or previously covered) by a
Security Interest created by a Finance
Document;
|
10
|
|
“Security
Trustee” means The Governor and Company of the Bank of
Ireland acting through its office at Head Office A3, Lower Baggot Street,
Dublin 2, Ireland or any successor of it appointed under clause 5 of the
Agency and Trust Agreement;
|
“Ship” means the
bulk carrier “KIND SEAS” of 37,689 gross tons and 24,199 net tons registered in
the ownership of the Corporate Guarantor under Xxxxxxxx Islands flag with
official number 2172;
“Swap Bank” means a
bank or financial institution listed in Schedule 2 and acting through its branch
indicated in Schedule 1;
“Swap
Exposure” means, as at any relevant date and in relation to a
Swap Bank, the amount certified by the Swap Bank to the Agent to be the
aggregate net amount in Dollars which would be payable by the Borrower to the
Swap Bank under (and calculated in accordance with) section 6(e) (Payments on
Early Termination) of the Master Agreement entered into by the Swap Bank with
the Borrower if an Early Termination Date had occurred on the relevant date in
relation to all continuing Designated Transactions entered into between the
Borrower and the Swap Bank;
“Termination Date” means the
date falling three (3) years from the date of this Agreement;
“Total Assets” means, as at the
relevant date, the aggregate value of all current assets, fixed assets, and
other assets and restricted cash of the Group (valued in accordance with GAAP),
but excluding any assets held on trust;
“Total
Equity” means, as at the relevant date, the value of the
stockholders’ equity of the Group determined on a consolidated basis in
accordance with GAAP and as shown in the consolidated balance sheets for the
Group in the Applicable Accounts;
“Total Liabilities” means, as
at the date of calculation, the aggregate Financial Indebtedness of the
Group;
“Total
Loss” means:
|
|
(a)
|
actual,
constructive, compromised, agreed or arranged total loss of the
Ship;
|
|
|
(b)
|
any
expropriation, confiscation, requisition or acquisition of the 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
condemnation of the Ship by any tribunal or by any person or person
claiming to be a tribunal;
|
|
|
(d)
|
any
arrest, capture, seizure or detention of the Ship (including any hijacking
or theft) unless she is within 30 days redelivered to the full control of
the owner thereof;
|
|
|
“Total Loss
Date” means:
|
|
|
(a)
|
in
the case of an actual loss of the Ship, the date on which it occurred or,
if that is unknown, the date when the Ship was last heard
of;
|
|
|
(b)
|
in
the case of a constructive, compromised, agreed or arranged total loss of
the Ship, the earliest of:
|
11
|
|
(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 of the Ship, with the Ship's insurers in which the insurers
agree to treat the 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 Agent that the event constituting the
total loss occurred;
|
“Transaction” has
the meaning given in each Master Agreement;
|
|
“Transfer
Certificate” has the meaning given in Clause 26.2;
and
|
|
|
“Trust Property” has the
meaning given in clause 3.1 of the Agency and Trust
Agreement.
|
|
1.2
|
Construction of certain
terms. In this
Agreement:
|
|
|
“approved” means,
for the purposes of Clause 13, approved in writing by the
Agent;
|
|
|
“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
partnership, joint venture and unincorporated
association;
|
“consent” includes an
authorisation, consent, approval, resolution, licence, exemption, filing,
registration, notarisation and legalisation;
|
|
“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, fax or telex;
|
|
|
“excess
risks” means the proportion of claims for general
average, salvage and salvage charges not recoverable under the hull and
machinery policies in respect of the Ship in consequence of her insured
value being less than the value at which the Ship is assessed for the
purpose of such claims;
|
|
|
“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 Council of the European
Union, the European Commission, the United Nations or its Security
Council;
|
|
|
“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;
|
|
|
“obligatory
insurances” means all insurances effected, or which the
Borrower is obliged to effect, under Clause 13 below or any other
provision of this Agreement or another Finance
Document;
|
12
|
|
“parent
company” has the meaning given in Clause
1.4;
|
|
|
“person” includes
any company; any state, political sub-division of a state and local or
municipal authority; and any international
organisation;
|
|
|
“policy”, in relation to
any insurance, includes a slip, cover note, certificate of entry or other
document evidencing the contract of insurance or its
terms;
|
|
|
“protection and indemnity
risks” means the usual risks covered by a protection and
indemnity association managed in London, including pollution risks and the
proportion (if any) of any sums payable to any other person or persons in
case of collision which are not recoverable under the hull and machinery
policies by reason of the incorporation therein of clause 1 of the
Institute Time Clauses (Hulls)(1/10/83) or clause 8 of the Institute Time
Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause
(1/10/71) or any equivalent
provision;
|
“regulation” includes any
regulation, rule, official directive, request or guideline (either having the
force of law or compliance with which is reasonable in the ordinary course of
business of the party concerned) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other
authority or organisation;
|
|
“subsidiary” has
the meaning given 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
reorganisation 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;
and
|
|
|
“war
risks” includes the risk of mines and all risks excluded
by clause 23 of the Institute Time Clauses (Hulls) (1/10/83) or clause 24
of the Institute Time Clauses (Hulls)
(1/11/1995).
|
|
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)
if:
|
|
(a)
|
a
majority of the issued shares in S (or a majority of the issued shares in
S which carry unlimited rights to capital and income distributions) are
directly owned by P or are indirectly attributable to P;
or
|
13
|
(b)
|
P
has direct or indirect control over a majority of the voting rights
attached 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)
|
In
this 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; and
|
|
|
(iii)
|
words
denoting the singular number shall include the plural and vice
versa.
|
|
(b)
|
Clauses
1.1 to 1.4 and paragraph (a) of this Clause 1.5 apply unless the contrary
intention appears.
|
|
(c)
|
References
in Clause 1.1 to a document being in the form of a particular Appendix
include references to that form with any modifications to that form which
the Agent (with the authorisation of the Majority Lenders in the case of
substantial modifications) approves or reasonably
requires.
|
|
(d)
|
The
clause headings shall not affect the interpretation of this
Agreement.
|
|
2
|
FACILITY
|
|
2.1
|
Amount of
facility. Subject to the other provisions of this
Agreement, the Lenders shall make available to the Borrower a revolving
credit facility in an aggregate amount not exceeding the lesser of (a)
$30,000,000 and (b) 50% of the Fair Market Value of the
Ship.
|
|
2.2
|
Lenders' participations in
Loan. Subject to the other provisions of this Agreement,
each Lender shall participate in each Advance in the proportion which, as
at the relevant Drawdown Date, its Commitment bears to the Total
Commitments.
|
|
2.3
|
Purpose of
Loan. The Borrower undertakes with each Creditor Party
to use each Advance only for the purpose stated in the preamble to this
Agreement.
|
|
3
|
POSITION
OF THE LENDERS AND THE SWAP BANKS
|
|
3.1
|
Interests of Lenders
several. The rights of the Lenders and of the Swap Banks
under this Agreement and the Master Agreements are several; accordingly
each Lender and each Swap Bank shall be entitled to sue for any amount
which has become due and payable by the Borrower to it under this
Agreement or under a Master Agreement without joining the Agent, the
Security Trustee, any other Lender or any other Swap Bank as additional
parties in the proceedings.
|
14
|
3.2
|
Proceedings by individual
Lender. However, without the prior consent of the
Majority Lenders, no Lender and no Swap Bank may bring proceedings in
respect of:
|
|
(a)
|
any
other liability or obligation of the Borrower or a Security Party under or
connected with a Finance Document;
or
|
|
(b)
|
any
misrepresentation or breach of warranty by the Borrower or a Security
Party in or connected with a Finance
Document.
|
|
3.3
|
Obligations of Lenders
several. The obligations of the Lenders and the Swap
Banks under this Agreement and the Master Agreements are several; and a
failure of a Lender to perform its obligations under this Agreement or the
failure of a Swap Bank to perform its obligations under the Master
Agreement to which it is a party shall not result
in:
|
|
(a)
|
the
obligations of the other Lenders or Swap Banks being increased;
nor
|
|
(b)
|
the
Borrower, any Security Party, any other Lender or any other Swap Bank
being discharged (in whole or in part) from its obligations under any
Finance Document,
|
|
|
and
in no circumstances shall a Lender have any responsibility for a failure
of another Lender or another Swap Bank to perform its obligations under
this Agreement or a Master
Agreement.
|
|
3.4
|
Parties bound by certain
actions of Majority Lenders. Every Lender, every Swap
Bank, the Borrower and each Security Party shall be bound
by:
|
|
(a)
|
any
determination made, or action taken, by the Majority Lenders under any
provision of a Finance Document;
|
|
(b)
|
any
instruction or authorisation given by the Majority Lenders to the Agent or
the Security Trustee under or in connection with any Finance
Document;
|
|
(c)
|
any
action taken (or in good faith purportedly taken) by the Agent or the
Security Trustee in accordance with such an instruction or
authorisation.
|
|
3.5
|
Reliance on action of
Agent. However, the Borrower and each Security
Party:
|
|
(a)
|
shall
be entitled to assume that the Majority Lenders have duly given any
instruction or authorisation which, under any provision of a Finance
Document, is required in relation to any action which the Agent has taken
or is about to take; and
|
|
(b)
|
shall
not be entitled to require any evidence that such an instruction or
authorisation has been given.
|
|
3.6
|
Construction. In
Clauses 3.4 and 3.5 references to action taken include (without
limitation) the granting of any waiver or consent, an approval of any
document and an agreement to any
matter.
|
|
4
|
DRAWDOWN
|
|
4.1
|
Request for
Advance. Subject to the following conditions, the
Borrower may request an Advance to be made by ensuring that the Agent
receives a completed Drawdown Notice not later than 11.00 a.m. (Dublin
time) 3 Business Days prior to the intended Drawdown
Date.
|
|
4.2
|
Availability. The
conditions referred to in Clause 4.1 are
that:
|
15
|
(a)
|
a
Drawdown Date has to be a Business Day during the Availability
Period;
|
|
(b)
|
the
amount of each Advance shall not exceed the Total Available
Commitments;
|
|
(c)
|
the
aggregate amount of the Advances shall not exceed the lesser of (i)
$30,000,000, (ii) 50% of the Fair Market Value of the Ship and (iii) the
Total Commitments; and
|
|
(d)
|
the
Borrower has complied with the provisions of Clause 9.1 with respect to
the relevant Advance.
|
|
4.3
|
Notification to Lenders of
receipt of a Drawdown Notice. 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 Advance and the Drawdown
Date;
|
|
(b)
|
the
amount of that Xxxxxx's participation in the Advance;
and
|
|
(c)
|
the
duration of the first Interest
Period.
|
|
4.4
|
Drawdown Notice
irrevocable. A Drawdown Notice must be signed by a
director or other authorised person of the Borrower; and once served, a
Drawdown Notice cannot be revoked without the prior consent of the Agent,
acting on the authority of the Majority
Lenders.
|
|
4.5
|
Lenders to make available
Contributions. Subject to the provisions of this
Agreement, each Lender shall, on and with value on each Drawdown Date,
make available to the Agent for the account of the Borrower the amount due
from that Lender on that Drawdown Date under Clause
2.2.
|
|
4.6
|
Disbursement of
Advance. Subject to the provisions of this Agreement,
the Agent shall on each Drawdown Date pay to the Borrower the amounts
which the Agent receives from the Lenders under Clause 4.5; and that
payment to the Borrower shall be
made:
|
|
(a)
|
to
the account which the Borrower specifies in the Drawdown Notice;
and
|
|
(b)
|
in
the like funds as the Agent received the payments from the
Lenders.
|
|
4.7
|
Disbursement of Advance to
third party. The payment by the Agent under Clause
4.6 shall constitute the making of the Advance and the Borrower shall
thereupon become indebted, as principal and direct obligor, to each Lender
in an amount equal to that Xxxxxx's
Contribution.
|
|
5
|
INTEREST
|
|
5.1
|
Payment of normal
interest. Subject to the provisions of this Agreement,
interest on each Advance in respect of each Interest Period shall be paid
by the Borrower on the last day of that Interest
Period.
|
|
5.2
|
Normal rate of
interest. Subject to the provisions of this Agreement,
the rate of interest on each Advance in respect of an Interest Period
shall be the aggregate of the Margin and LIBOR for that Interest
Period.
|
|
5.3
|
Payment of accrued
interest. In the case of an Interest Period longer than
3 months, accrued interest shall be paid every 3 months during that
Interest Period and on the last day of that Interest
Period.
|
16
|
5.4
|
Notification of Interest
Periods and rates of normal interest. The Agent shall
notify the Borrower and each Lender
of:
|
|
(a)
|
each
rate of interest; and
|
|
(b)
|
the
duration of each Interest Period;
|
as soon as reasonably practicable after
each is determined.
|
5.5
|
Market
disruption. The following provisions of this Clause 5
apply if:
|
|
(a)
|
at
least one Business Day before the start of an Interest Period, Lenders
having Contributions together amounting to more than 40 per cent. of the
Loan (or, if an Advance has not been made, Commitments amounting to more
than 40 per cent. 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 Contributions (or any part of them) during the
Interest Period in the London Interbank Dollar Market at or about 11.00
a.m. (London time) on the second Business Day before the commencement of
the Interest Period; or
|
|
(b)
|
at
least one Business Day before the start of an Interest Period, the Agent
is notified by a Lender (the “Affected Lender”) that
for any reason it is unable to obtain Dollars in the London Interbank
Market in order to fund its Contribution (or any part of it) during the
Interest Period.
|
|
5.6
|
Notification of market
disruption. The Agent shall promptly notify the Borrower
and each of the Lenders stating the circumstances falling within Clause
5.5 which have caused its notice to be
given.
|
|
5.7
|
Suspension of
drawdown. If the Agent's notice under Clause 5.6 is
served before an Advance is made:
|
|
(a)
|
in
a case falling within paragraph (a) of Clause 5.5, the Lenders'
obligations to make the Advance;
|
|
(b)
|
in
a case falling within paragraph (b) of Clause 5.5, the Affected Lender's
obligation to participate in the
Advance;
|
|
|
shall
be suspended while the circumstances referred to in the Agent's notice
continue.
|
|
5.8
|
Negotiation of alternative rate
of interest. If the Agent’s notice under Clause 5.6 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
endeavours to agree, within the 30 days after the date on which the Agent
serves its notice under Clause 5.6 (the “Negotiation Period”), an
alternative interest rate or (as the case may be) an alternative basis for
the Lenders or (as the case may be) the Affected Lender to fund or
continue to fund their or its Contribution to the relevant Advance or
Advances during the Interest Period
concerned.
|
|
5.9
|
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.
|
17
|
5.10
|
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, with the agreement of each
Lender or (as the case may be) the Affected Lender, 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 Contribution to the relevant Advance or Advances
plus the Margin; and the procedure provided for by this Clause 5.10 shall
be repeated if the relevant circumstances are continuing at the end of the
interest period so set by the
Agent.
|
|
5.11
|
Notice of
prepayment. If the Borrower does not agree with an
interest rate set by the Agent under Clause 5.10, the Borrower may give
the Agent not less than 15 Business Days' notice of its intention to
prepay the relevant Advance or Advances at the end of the interest period
set by the Agent.
|
|
5.12
|
Prepayment; termination of
Commitments. A notice under Clause 5.11 shall be
irrevocable; the Agent shall promptly notify the Lenders or (as the case
may require) the Affected Lender of the Borrower’s notice of intended
prepayment; and:
|
|
(a)
|
on
the date on which the Agent serves that notice, the Total Commitments or
(as the case may require) the Commitment of the Affected Lender so far as
they relate to the relevant Advance or Advances 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 Contribution, together with accrued
interest thereon at the applicable rate plus the
Margin.
|
|
5.13
|
Application of
prepayment. The provisions of Clause 8 shall apply in
relation to the prepayment.
|
|
6
|
INTEREST
PERIODS
|
|
6.1
|
Commencement of Interest
Periods. There shall be a single Interest Period for
each Advance which shall be notified by the Borrower to the Agent in the
Drawdown Notice for that Advance and subject to Clauses 6.2 and 6.3, that
Interest Period shall be:
|
|
(a)
|
3
or 6 months as notified by the Borrower to the Agent in the Drawdown
Notice for that Advance; or
|
|
(b)
|
three
(3) months, if the Borrower fails to notify the Agent in the Drawdown
Notice for that Advance; or
|
|
(c)
|
such
other period as the Agent may, with the Majority Lenders' authority, agree
with the Borrower.
|
|
6.2
|
Non-availability of matching
deposits for Interest Period selected. If, after the
Borrower has selected and the Lenders have agreed to an Interest Period
longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (Dublin
time) on the second Business Day before the commencement of the Interest
Period that it is not satisfied that deposits in Dollars for a period
equal to the Interest Period will be available to it in the London
Interbank Market when the Interest Period commences, the Interest Period
shall be of three (3) months.
|
|
6.3
|
No Interest Period to extend
beyond Termination Date. No Interest Period shall end
after the Termination Date and any Interest Period which would otherwise
extend beyond the Termination Date shall instead end on the Termination
Date.
|
18
|
7
|
DEFAULT
INTEREST
|
|
7.1
|
Payment of default interest on
overdue amounts. The Borrower shall pay interest in
accordance with the following provisions of this Clause 7 on any amount
payable by the Borrower under any Finance Document which the Agent, the
Security Trustee or the other designated payee does not receive on or
before the relevant date, that is:
|
|
(a)
|
the
date on which the Finance Documents provide that such amount is due for
payment; or
|
|
(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 19.4, the
date on which it became immediately due and
payable.
|
|
7.2
|
Default rate of
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 two per cent. (2%)
above:
|
|
(a)
|
in
the case of an overdue amount of principal, the higher of the rates set
out at paragraphs (a) and (b) of Clause 7.3;
or
|
|
(b)
|
in
the case of any other overdue amount, the rate set out at paragraph (b) of
Clause 7.3.
|
|
7.3
|
Calculation of default rate of
interest. The rates referred to in Clause 7.2
are:
|
|
(a)
|
the
rate applicable to the overdue principal amount immediately prior to the
relevant date (but only for any unexpired part of any then current
Interest Period);
|
|
(b)
|
the
Margin plus, in respect of successive periods of any duration (including
at call) up to 3 months which the Agent may select from time to
time:
|
|
|
(i)
|
LIBOR;
or
|
|
|
(ii)
|
if
the Agent determines that Dollar deposits for any such period are not
being made available to a Lender or (as the case may be) Lenders by
leading banks in the London Interbank Market in the ordinary course of
business, a rate from time to time determined by the Agent by reference to
the cost of funds to the Agent from such other sources as the Agent may
from time to time determine.
|
|
7.4
|
Notification of interest
periods and default rates. The Agent shall promptly
notify the Lenders and the Borrower of each interest rate determined by
the Agent under Clause 7.3 and of each period selected by the Agent for
the purposes of paragraph (b) of that Clause; 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.
|
|
7.5
|
Payment of accrued default
interest. Subject to the other provisions of this
Agreement, any interest due under this Clause shall be paid on the last
day of the period by reference to which it was determined; and the payment
shall be made to the Agent for the account of the Creditor Party to which
the overdue amount is due.
|
|
7.6
|
Compounding of default
interest. Any such interest which is not paid at the end
of the period by reference to which it was determined shall thereupon be
compounded.
|
|
7.7
|
Application to Master
Agreements. For the avoidance of doubt, this Clause 7
does not apply to any amount payable under a 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.
|
19
|
8
|
REPAYMENT
AND PREPAYMENT
|
|
8.1
|
Repayment. The
Loan shall be repaid in full on the Termination Date, together with all
other sums then accrued or owing under any Finance
Document.
|
|
8.2
|
Voluntary
prepayment. Subject to the following conditions, the
Borrower may prepay the whole or part of the Loan on the last day of an
Interest Period.
|
|
8.3
|
Conditions for voluntary
prepayment. The conditions referred to in Clause 8.2 are
that:
|
|
(a)
|
a
partial prepayment shall be in the minimum amount of Five hundred thousand
Dollars ($500,000) or a multiple
thereof;
|
|
(b)
|
the
Agent has received from the Borrower at least 15 Business Days' prior
written notice specifying the amount to be prepaid and the date on which
the prepayment is to be made (such date shall be the last day of an
Interest Period);
|
|
(c)
|
the
Borrower has provided evidence satisfactory to the Agent that any consent
required by the Borrower or any Security Party in connection with the
prepayment has been obtained and remains in force, and that any
requirement relevant to this Agreement which affects the Borrower or any
Security Party has been complied with;
and
|
|
(d)
|
where
the prepayment arises as a result of the refinancing of the Loan or any
part thereof by a bank or other financial institution (other than the
Agent), the Borrower shall pay a prepayment fee of zero point three seven
five percent (0.375%) on the amount
prepaid.
|
|
8.4
|
Effect of notice of
prepayment. A prepayment notice may not be withdrawn or
amended without the consent of the Agent, given with the authority 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.
|
|
8.5
|
Notification 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 8.3(c).
|
|
8.6
|
Mandatory
prepayment. The Borrower shall be obliged to prepay the
whole of the Loan and the Total Commitments shall
terminate:
|
|
(a)
|
if
the Ship is sold or becomes a Total
Loss:
|
|
|
(i)
|
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
|
|
|
(ii)
|
in
the case of a Total Loss, on the earlier of the date falling 90 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;
or
|
|
(b)
|
if
it appears to the Majority Lenders (acting reasonably) that, without their
prior written consent a change has occurred or probably has occurred after
the date of this Agreement in the legal and beneficial ownership of any of
the shares in the Corporate Guarantor as a result of which the Borrower is
no longer the legal and beneficial owner of one hundred per cent. (100%)
of the shares in the Corporate
Guarantor.
|
|
8.7
|
Amounts payable on
prepayment. A prepayment shall be made together with
accrued interest (and any other amount payable under Clause 21 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 21.1(b) but without premium or
penalty.
|
20
|
8.8
|
Reborrowing
permitted. Subject to the terms of this Agreement, any
amount prepaid or repaid may be
reborrowed.
|
|
8.9
|
Unwinding of Designated
Transactions. On or prior to any repayment or prepayment
of the Loan under this Clause 8 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
so that the notional principal amount of the continuing Designated
Transactions thereafter remaining does not and will not in the future
(taking into account the scheduled amortisation) exceed the amount of the
Loan.
|
|
8.10
|
Voluntary Cancellation of
Commitments. Subject to the following conditions, the
Borrower may cancel the whole or any part of the Total
Commitments.
|
|
8.11
|
Conditions for cancellation of
Commitments. Those conditions
are:
|
|
(a)
|
that
a partial cancellation shall be $1,000,000 or a multiple of $1,000,000;
and
|
|
(b)
|
that
the Agent has received from the Borrower at least 15 Business Days’ prior
written notice specifying the amount of the Total Commitments to be
cancelled and the date on which the cancellation is to take
effect.
|
|
8.12
|
Effect of notice of
cancellation. The service of a cancellation notice shall
cause the amount of the Total Commitments specified in the notice to be
permanently cancelled and any partial cancellation shall be applied
against the Commitments of each Lender pro
rata.
|
|
9
|
CONDITIONS
PRECEDENT
|
|
9.1
|
Documents, fees and no
default. Each Lender's obligation to contribute to an
Advance is subject to the following conditions
precedent:
|
|
(a)
|
that,
on or before the date of signing of this Agreement and service of the
first Drawdown Notice, the Agent receives the documents described in
Schedule 4 in form and substance satisfactory to the Agent and its
lawyers;
|
|
(b)
|
that,
on or before the service of the first Drawdown Notice, the Agent receives
the fees payable pursuant to Clause 20.1 and has received payment of the
expenses referred to in Clause
20.2;
|
|
(c)
|
that
both at the date of each Drawdown Notice and at each 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;
|
|
|
(ii)
|
the
representations and warranties in Clause 10 and those of the Borrower or
any Security Party 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;
|
|
|
(iii)
|
none
of the circumstances contemplated by Xxxxxx 5.7 has occurred and is
continuing;
|
|
(d)
|
that,
if the ratio set out in Clause 15.1 were applied immediately following the
making of the Advance, the Borrower would not be obliged to provide
additional security or prepay part of the Loan under that Clause;
and
|
21
|
(e)
|
that
the Agent has 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, with the authorisation of the
Majority Lenders, request by notice to the Borrower prior to the Drawdown
Date.
|
|
9.2
|
Waiver of conditions
precedent. If the Majority Lenders, at their discretion,
permit an Advance to be borrowed before certain of the conditions referred
to in Clause 9.1 are satisfied, the Borrower shall ensure that those
conditions are satisfied within 5 Business days after the relevant
Drawdown Date (or such longer period as the Agent may, with the authority
of the Majority Lenders, specify).
|
|
10
|
REPRESENTATIONS
AND WARRANTIES
|
|
10.1
|
General. The
Borrower represents and warrants to each Creditor Party as
follows.
|
|
10.2
|
Status. The
Borrower is duly incorporated and validly existing and in good standing
under the laws of the Republic of the Xxxxxxxx
Islands.
|
|
10.3
|
Share capital and
ownership. The Borrower has an authorised share capital
of 150,000,000 registered shares of stock, consisting of 120,000,000
shares of Class A common stock with a par value of $0.001 each, 5,000,000
shares of Class B common stock with a par value of $0.001 each and
25,000,000 preferred shares with a par value of $0.001; as at the date
hereof, the Borrower’s total capital stock issued and outstanding is
27,070,615 Class A common shares with a par value of $0.001
each.
|
|
10.4
|
Corporate
power. The Borrower has the corporate capacity, and has
taken all corporate action and obtained all consents necessary for
it:
|
|
(a)
|
to
execute the Finance Documents to which it is a party;
and
|
|
(b)
|
to
borrow under this Agreement, to enter into Designated Transactions under
the Master Agreements and to make all the payments contemplated by, and to
comply with, the Finance Documents to which the Borrower is a
Party.
|
|
10.5
|
Consents in
force. All the consents referred to in Clause 10.4
remain in force and nothing has occurred which makes any of them liable to
revocation.
|
|
10.6
|
Legal validity; effective
Security Interests. The Finance Documents to which the
Borrower 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):
|
|
(a)
|
constitute
the Borrower's legal, valid and binding obligations enforceable against
the Borrower in accordance with their respective terms;
and
|
|
(b)
|
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,
|
subject to any relevant insolvency laws
affecting creditors' rights generally.
|
10.7
|
No third party Security
Interests. Without limiting the generality of Clause
10.6, at the time of the execution and delivery of each Finance
Document:
|
|
(a)
|
the
Borrower will have the right to create all the Security Interests which
that Finance Document purports to create;
and
|
22
|
(b)
|
no
third party will have any Security Interest (except for Permitted Security
Interests) or any other interest, right or claim over, in or in relation
to any asset to which any such Security Interest, by its terms,
relates.
|
|
10.8
|
No
conflicts. The execution by the Borrower of each Finance
Document to which it is a party, and the borrowing by the Borrower of the
Loan, and its compliance with each Finance Document to which it is a party
will not involve or lead to a contravention
of:
|
|
(a)
|
any
law or regulation; or
|
|
(b)
|
the
constitutional documents of the Borrower;
or
|
|
(c)
|
any
contractual or other obligation or restriction which is binding on the
Borrower or any of its assets.
|
|
10.9
|
No withholding
taxes. All payments which the Borrower 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.
|
|
10.10
|
No
default. No Event of Default or Potential Event of
Default has occurred and is
continuing.
|
|
10.11
|
Information. All
information which has been provided in writing by or on behalf of the
Borrower or any Security Party to any Creditor Party in connection with
any Finance Document satisfied the requirements of Clause 11.5; all
audited and unaudited accounts which have been so provided satisfied the
requirements of Clause 11.7; and there has been no material adverse change
in the financial position or state of affairs of the Borrower from that
disclosed in the latest of those
accounts.
|
|
10.12
|
No
litigation. No legal or administrative action involving
the Borrower or the Corporate Guarantor (including action relating to any
alleged or actual breach of the ISM Code or the ISPS Code) has been
commenced or taken or, to the Borrower’s knowledge, is likely to be
commenced or taken.
|
|
10.13
|
Compliance with certain
undertakings. At the date of this Agreement, the
Borrower is in compliance with Clauses 11.2, 11.8 and
11.11.
|
|
10.14
|
Taxes
paid. The Borrower has paid all taxes applicable to, or
imposed on or in relation to it and its
business.
|
|
10.15
|
ISM Code and ISPS Code
compliance. All requirements of the ISM Code and the
ISPS Code as they relate to the Corporate Guarantor, the Approved Manager
and the Ship have been complied
with.
|
|
10.16
|
No Money
Laundering. Without prejudice to the generality of
Clause 2.3, in relation to the borrowing by the Borrower of the Loan, the
performance and discharge of its obligations and liabilities under the
Finance Documents, and the transactions and other arrangements effected or
contemplated by the Finance Documents to which the Borrower is a party,
the Borrower confirms that (i) it is acting for its own account, (ii) that
it will use the proceeds of the Loan for its own benefit, under its full
responsibility and exclusively for the purposes specified in this
Agreement and (iii) that the foregoing will not involve or lead to
contravention of any law, official requirements 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).
|
23
|
11
|
GENERAL
UNDERTAKINGS
|
|
11.1
|
General. The
Borrower undertakes with each Creditor Party to comply with the following
provisions of this Clause 11 at all times during the Security Period
except as the Agent may, with the authority of the Majority Lenders,
otherwise permit.
|
|
11.2
|
Title; negative pledge, pari
passu. The Borrower
will:
|
|
(a)
|
own
the entire legal and beneficial interest in the Corporate Guarantor, free
from all Security Interests and other interests and rights of every kind,
except for those created by the Finance Documents (and except for
Permitted Security Interests);
|
|
(b)
|
not
(without the prior consent of the Lenders) create or permit to arise any
Security Interest (except for Permitted Security Interests) over any
asset, present or future (including, but not limited to, the Borrower’s
rights against a Swap Bank under a Master Agreement or all or any of the
Borrower’s interest in any amount payable to the Borrower by a Swap Bank
under a Master Agreement); and
|
|
(c)
|
procure
that its liabilities under the Finance Documents to which it is a party to
and will rank at least pari passu with all its other present and future
unsecured liabilities, except for liabilities which are mandatorily
preferred by law.
|
|
11.3
|
No disposal of
assets. The Borrower will not (without the prior written
consent of the Lenders) transfer, lease or otherwise dispose
of:
|
|
(a)
|
all
or a substantial part of its assets, whether by one transaction or a
number of transactions, whether related or not;
or
|
|
(b)
|
any
debt payable to it or any other right (present, future or contingent
right) to receive a payment, including any right to damages or
compensation.
|
|
11.4
|
Information provided to be
accurate. All financial and other information which is
provided in writing by or on behalf of the Borrower under or in connection
with any Finance Document will be true and not misleading and will not
omit any material fact or
consideration.
|
|
11.5
|
Provision of financial
statements. The Borrower will send to the
Agent:
|
|
(a)
|
as
soon as possible, but in no event later than 180 days after the end of
each Financial Year (commencing with the Financial Year ended 31 December
2007), the annual audited consolidated financial statements of the Group
for that Financial Year;
|
|
(b)
|
as
soon as possible, but in no event later than 60 days after the end of each
three month period during each Financial Year (commencing with the three
month period ended 30 June 2008), the quarterly unaudited consolidated
financial statements of the Group for that three month period;
and
|
|
(c)
|
promptly
after each request by the Agent, such further information about the
financial condition, commitments and operations of the Borrower and the
Corporate Guarantor as the Agent may reasonably
require.
|
|
11.6
|
Form of financial
statements. All financial statements (audited and
unaudited) delivered under Clause 11.5
will:
|
|
(a)
|
be
prepared in accordance with all applicable laws and GAAP consistently
applied;
|
24
|
(b)
|
give
a true and fair view of the state of affairs of the Group at the date of
those accounts and of the profit for the period to which those accounts
relate; and
|
|
(c)
|
fully
disclose or provide for all significant liabilities of the
Group.
|
|
11.7
|
Consents. The
Borrower will maintain in force and promptly obtain or renew, and will
promptly send certified copies to the Agent of, all consents
required:
|
|
(a)
|
for
the Borrower to perform its obligations under any Finance Document to
which it is party;
|
|
(b)
|
for
the validity or enforceability of or any Finance Document to which it is
party,
|
and the
Borrower will comply with the terms of all such consents.
|
11.8
|
Maintenance of Security
Interests. The Borrower
will:
|
|
(a)
|
at
its own cost, do all that it reasonably can to ensure that any Finance
Document validly creates the obligations and the Security Interests which
it purports to create; and
|
|
(b)
|
without
limiting the generality of paragraph (a) above, at its own cost, promptly
register, file, record or enrol any Finance Document with any court or
authority in all Pertinent Jurisdictions, pay any stamp, registration or
similar tax in all Pertinent Jurisdictions in respect of any Finance
Document, give any notice or take any other step which, in the opinion of
the Majority Lenders, is or has become necessary or desirable for any
Finance Document to be valid, enforceable or admissible in evidence or to
ensure or protect the priority of any Security Interest which it
creates.
|
|
11.9
|
Notification of
litigation. The Borrower will provide the Agent with
details of any legal or administrative action involving the Borrower, any
Security Party, the Approved Manager or the Ship, its Earnings or its
Insurances as soon as such action is instituted or it becomes apparent to
the Borrower that it is likely to be instituted, unless it is clear that
the legal or administrative action cannot be considered material in the
context of any Finance Document.
|
|
11.10
|
No amendment to Master
Agreements. The Borrower will not agree to any amendment or
supplement to, or waive or fail to enforce, any Master Agreement or any of
its provisions, or enter into any Transaction pursuant to any Master
Agreement except Designated
Transactions.
|
|
11.11
|
Principal place of
business. The Borrower will maintain its place of
business, and keep its corporate documents and records, at the address
stated at the commencement of this Agreement; and the Borrower will not
establish, or do anything as a result of which it would be deemed to have,
a place of business in the United Kingdom or the United States of
America.
|
|
11.12
|
Confirmation of no
default. The Borrower will, within 2 Business Days after
service by the Agent of a written request, serve on the Agent a notice
which is signed by 2 directors of the Borrower and
which:
|
|
(a)
|
states
that no Event of Default or Potential Event of Default has occurred;
or
|
|
(b)
|
states
that no Event of Default or Potential Event of Default has occurred,
except for a specified event or matter, of which all material details are
given.
|
|
11.13
|
Notification of
default. The Borrower will notify the Agent as soon as
the Borrower becomes aware of:
|
25
|
(a)
|
the
occurrence of an Event of Default or a Potential Event of Default;
or
|
|
(b)
|
any
matter which indicates that an Event of Default or a Potential Event of
Default may have occurred,
|
and will thereafter keep the Agent
fully up-to-date with all developments.
|
11.14
|
Provision of further
information. The Borrower will, as soon as practicable
after receiving the request, provide the Agent with any additional
financial or other information
relating:
|
|
(a)
|
to
the Borrower, the Ship, its Insurances or its Earnings;
or
|
|
(b)
|
to
any other matter relevant to, or to any provision of, a Finance
Document,
|
which may
be requested by the Agent, the Security Trustee, any Lender or any Swap Bank at
any time.
|
11.15
|
Provision of copies and
translation of documents. The Borrower will supply the
Agent with a sufficient number of copies of the documents referred to
above to provide 1 copy for each Creditor Party; and if the Agent so
requires in respect of any of those documents, the Borrower will provide a
certified English translation prepared by a translator approved by the
Agent.
|
|
12
|
CORPORATE
UNDERTAKINGS
|
|
12.1
|
General. The
Borrower also undertakes with each Creditor Party to comply with the
following provisions of this Clause 12 at all times during the Security
Period except as the Agent may, with the authority of the Majority
Lenders, otherwise permit.
|
|
12.2
|
Maintenance of
status. The Borrower will maintain its separate
corporate existence and remain in good standing under the laws of the
Republic of the Xxxxxxxx Islands.
|
|
12.3
|
Negative
undertakings. The Borrower will
not:
|
|
(a)
|
carry
on any business other than the ownership of the Borrower and other
companies which own or are to acquire bulk carriers, and the incurrence of
Financial Indebtedness and other obligations and activities incidental to
the foregoing; or
|
|
(b)
|
make
any form of distribution (other than payment of a dividend) or effect any
form of redemption, purchase or return of share capital;
or
|
|
(c)
|
without
the prior written consent of the Agent (acting on the instructions of the
Majority Lenders), provide any form of credit or financial assistance or
issue any guarantee to any person, or enter into any transaction with or
involving such a person, except credit or financial assistance or
guarantees provided to companies within the same beneficial or ultimate
beneficial ownership as the Borrower on an arm’s length basis in the
normal course of business and fully subordinated to the interests of the
Creditor Parties under the Finance Documents;
or
|
|
(d)
|
without
the prior written consent of the Agent (acting on the instructions of the
Majority Lenders), open or maintain any account (other than any accounts
already in existence at the date of this Agreement) with any bank or
financial institution except accounts with the Agent for the purposes of
the Finance Documents and accounts notified to the Agent prior to the date
of this Agreement; or
|
26
|
(e)
|
acquire
any shares or other securities other than US or UK Treasury bills and
certificates of deposit issued by major North American or European banks,
or enter into any transaction in a derivative (other than a Designated
Transaction); or
|
|
(f)
|
enter
into any form of amalgamation, merger or de-merger or any form of
reconstruction or reorganisation.
|
|
12.4
|
Dividends. For
the avoidance of doubt, the Borrower may pay dividends during the Security
Period provided that no Event of Default or Potential Event of Default has
occurred or would occur as a result of any such
payment.
|
|
12.5
|
Minimum
liquidity. The Borrower further undertakes to procure
that, at all times during the Security Period, the Corporate Guarantor
maintains on the Operating Account the sum of at least $500,000 in freely
available cash, which amount is not subject to any Security Interest
(other than in favour of the
Lenders).
|
|
12.6
|
Ownership. The
Borrower shall procure that there shall be no change in the legal or
beneficial ownership of the shares in the Corporate Guarantor throughout
the Security Period.
|
|
12.7
|
Financial
Covenants. The Borrower shall ensure that at all
times:
|
|
(a)
|
the
ratio of Total Liabilities to EBITDA shall not exceed
5:1;
|
|
(b)
|
the
Market Value Adjusted Net Worth of the Group shall not be less than
$50,000,000;
|
|
(c)
|
there
is available to the Borrower and all the other members of the Group an
amount of not less than $500,000 per Fleet Vessel and that, in relation to
the Ship, such amount is standing to the credit of the Operating Account;
and
|
|
(d)
|
the
Leverage Ratio shall not exceed
0.7:1.
|
|
12.8
|
Compliance
Check. Compliance with the undertakings contained in
Clause 12.7 shall be determined in each Financial
Year:
|
|
(a)
|
at
the time the Agent receives the audited consolidated accounts of the Group
and the unaudited consolidated accounts of the Group (pursuant to Clauses
11.5(a) and 11.6(b) respectively), by reference to the unaudited
consolidated accounts in the case of the first three financial quarters in
each Financial Year and for the fourth financial quarter in each Financial
Year, initially by reference to the unaudited consolidated accounts for
the relevant fourth quarter and, once available, by reference to the
audited consolidated accounts for that Financial Year of the Group;
and
|
|
(b)
|
at
any other time as the Agent may reasonably request by reference to such
evidence as the Lenders may require to determine and calculate the
financial covenants referred to in Clause
12.7.
|
At the
same time as it delivers the consolidated accounts referred to in this Clause
12.8, the Borrower shall deliver to the Agent a Compliance Certificate
demonstrating its compliance (or not, as the case may be) with the provisions of
Clause 12.7 signed by the chief financial officer of the Borrower.
|
12.9
|
Change in accounting
expressions and policies. If, by reason of change in
format or GAAP or other relevant accounting policies, the expressions
appearing in any accounts and financial statements referred to in Clause
11.5 alter from those in the accounts and financial statements for the
Borrower for the year ended 31 December 2007, the relevant definitions
contained in Clause 1.1 and the provisions of Clause 12.7 shall be deemed
modified in such manner as the Agent, acting with the authorisation of the
Majority Lenders, shall require to take account of such different
expressions but otherwise to maintain in all respects the substance of
those provisions.
|
27
|
13
|
INSURANCE
|
|
13.1
|
General. The
Borrower undertakes with each Creditor Party to procure that the Corporate
Guarantor will comply with the following provisions of this Clause 13 at
all times during the Security Period except as the Agent may, with the
authority of the Majority Lenders, otherwise
permit.
|
|
13.2
|
Maintenance of obligatory
insurances. The Corporate Guarantor shall keep the Ship
insured at the expense of the Corporate Guarantor
against:
|
|
(a)
|
fire
and usual marine risks (including hull and machinery and excess
risks);
|
|
(b)
|
war
risks (including war protection and indemnity liabilities);
and
|
|
(c)
|
protection
and indemnity risks (including cover for oil pollution liability risks);
and
|
|
(d)
|
any
other risks against which the Majority Lenders consider, having regard to
practices and other circumstances prevailing at the relevant time, it
would in the opinion of the Majority Lenders be reasonable for the
Corporate Guarantor to insure and which are specified by the Security
Trustee by notice to the Corporate
Guarantor.
|
|
13.3
|
Terms of obligatory
insurances. The Corporate Guarantor shall effect such
insurances:
|
|
(a)
|
in
Dollars;
|
|
(b)
|
in
the case of fire and usual marine risks and war risks, in an amount on an
agreed value basis at least the greater of (i) 120% of the aggregate of
the amount of the Loan and the Swap Exposure and (ii) the Fair Market
Value of the Ship;
|
|
(c)
|
in
the case of oil pollution liability risks, for an aggregate amount equal
to the highest level of cover from time to time available under basic
protection and indemnity club entry (with the international group of
protection and indemnity clubs) and the international marine insurance
market (currently $1,000,000,000);
|
|
(d)
|
in
relation to protection and indemnity risks in respect of the full value
and tonnage of the Ship;
|
|
(e)
|
on
approved terms; and
|
|
(f)
|
through
approved brokers and with approved insurance companies and/or underwriters
or, in the case of war risks and protection and indemnity risks, in
approved war risks and protection and indemnity risks
associations.
|
|
13.4
|
Further protections for the
Creditor Parties. In addition to the terms set out in
Clause 13.3, the Corporate Guarantor shall procure that the obligatory
insurances shall:
|
|
(a)
|
whenever
the Security Trustee so requires, name (or be amended to name) the
Security Trustee as additional named assured for its rights and interests,
warranted no operational interest and with full waiver of rights of
subrogation against the Security Trustee, but without the Security Trustee
thereby being liable to pay (but having the right to pay) premiums, calls
or other assessments in respect of such
insurance;
|
|
(b)
|
name
the Security Trustee as sole loss payee with such directions for payment
as the Security Trustee may
specify;
|
|
(c)
|
provide
that all payments by or on behalf of the insurers under the obligatory
insurances to the Security Trustee shall be made without set-off,
counterclaim or deductions or condition
whatsoever;
|
28
|
(d)
|
provide
that such obligatory insurances shall be primary without right of
contribution from other insurances which may be carried by the Security
Trustee; and
|
|
(e)
|
provide
that the Security Trustee may make proof of loss if the Corporate
Guarantor fails to do so.
|
|
13.5
|
Renewal of obligatory
insurances. The Corporate Guarantor
shall:
|
|
(a)
|
at
least 21 days before the expiry of any obligatory
insurance:
|
|
|
(i)
|
notify
the Security Trustee of the brokers (or other insurers) and any protection
and indemnity or war risks association through or with whom the Corporate
Guarantor proposes to renew that insurance and of the proposed terms of
renewal; and
|
|
|
(ii)
|
in
case of any substantial change in insurance cover, obtain the Majority
Lenders' approval to the matters referred to in paragraph (i)
above;
|
|
(b)
|
at
least 14 days before the expiry of any obligatory insurance, renew the
insurance; and
|
|
(c)
|
procure
that the approved brokers and/or the war risks and protection and
indemnity associations with which such a renewal is effected shall
promptly after the renewal notify the Security Trustee in writing of the
terms and conditions of the
renewal.
|
|
13.6
|
Copies of policies; letters of
undertaking. The Corporate Guarantor shall ensure that
all approved brokers provide the Security Trustee with copies of all
policies relating to the obligatory insurances which they effect or renew
and of a letter or letters or undertaking in a form required by the
Majority Lenders and including undertakings by the approved brokers
that:
|
|
(a)
|
they
will have endorsed on each policy, immediately upon issue, a loss payable
clause and a notice of assignment complying with the provisions of Clause
13.4;
|
|
(b)
|
they
will hold such policies, and the benefit of such insurances, to the order
of the Security Trustee in accordance with the said loss payable
clause;
|
|
(c)
|
they
will advise the Security Trustee immediately of any material change to the
terms of the obligatory insurances;
|
|
(d)
|
they
will notify the Security Trustee, not less than 14 days before the expiry
of the obligatory insurances, in the event of their not having received
notice of renewal instructions from the Corporate Guarantor or its agents
and, in the event of their receiving instructions to renew, they will
promptly notify the Security Trustee of the terms of the instructions;
and
|
|
(e)
|
they
will not set off against any sum recoverable in respect of a claim
relating to the Ship owned by the Corporate Guarantor under such
obligatory insurances any premiums or other amounts due to them or any
other person whether in respect of the Ship or otherwise, they waive any
lien on the policies or, any sums received under them, which they might
have in respect of such premiums or other amounts, and they will not
cancel such obligatory insurances by reason of non-payment of such
premiums or other amounts, and will arrange for a separate policy to be
issued in respect of the Ship forthwith upon being so requested by the
Security Trustee.
|
|
13.7
|
Copies of certificates of
entry. The Corporate Guarantor shall ensure that any
protection and indemnity and/or war risks associations in which the Ship
is entered provides the Security Trustee
with:
|
29
|
(a)
|
a
certified copy of the certificate of entry for the
Ship;
|
|
(b)
|
a
letter or letters of undertaking in such form as may be required by the
Majority Lenders; and
|
|
(c)
|
a
certified copy of each certificate of financial responsibility for
pollution by oil or other Environmentally Sensitive Material issued by the
relevant certifying authority in relation to the
Ship.
|
|
13.8
|
Deposit of original
policies. The Corporate Guarantor shall ensure that all
policies relating to obligatory insurances are deposited with the approved
brokers through which the insurances are effected or
renewed.
|
|
13.9
|
Payment of
premiums. The Corporate Guarantor shall punctually pay
all premiums or other sums payable in respect of the obligatory insurances
and produce all relevant receipts when so required by the Security
Trustee.
|
|
13.10
|
Guarantees. The
Corporate Guarantor shall ensure that any guarantees required by a
protection and indemnity or war risks association are promptly issued and
remain in full force and effect.
|
|
13.11
|
Restrictions on
employment. The Corporate Guarantor shall not employ the
Ship owned by it, nor permit her to be employed, outside the cover
provided by any obligatory
insurances.
|
|
13.12
|
Compliance with terms of
insurances. The Corporate Guarantor shall not do or omit
to do (or permit to be done or not to be done) any act or thing which
would or might render any obligatory insurance invalid, void, voidable or
unenforceable or render any sum payable thereunder repayable in whole or
in part; and, in particular:
|
|
(a)
|
the
Corporate Guarantor shall take all necessary action and comply with all
requirements which may from time to time be applicable to the obligatory
insurances, and (without limiting the obligation contained in Clause
13.7(c) above) ensure that the obligatory insurances are not made subject
to any exclusions or qualifications to which the Security Trustee has not
given its prior approval;
|
|
(b)
|
the
Corporate Guarantor shall not make any changes relating to the
classification or classification society or manager or operator of the
Ship approved by the underwriters of the obligatory
insurances;
|
|
(c)
|
the
Corporate Guarantor shall make all quarterly or other voyage declarations
which may be required by the protection and indemnity risks association in
which the Ship owned by it is entered to maintain cover for trading to the
United States of America and Exclusive Economic Zone (as defined in the
United States Oil Pollution Act 1990 or any other applicable legislation);
and
|
|
(d)
|
the
Corporate Guarantor shall not employ the Ship, nor allow it to be
employed, otherwise than in conformity with the terms and conditions of
the obligatory insurances, without first obtaining the consent of the
insurers and complying with any requirements (as to extra premium or
otherwise) which the insurers
specify.
|
|
13.13
|
Alteration to terms of
insurances. The Corporate Guarantor shall neither make
or agree to any alteration to the terms of any obligatory insurance or
waive any right relating to any obligatory insurance without the prior
written consent of the Security
Trustee.
|
|
13.14
|
Settlement of
claims. The Corporate Guarantor shall not settle,
compromise or abandon any claim under any obligatory insurance for Total
Loss or for a Major Casualty, and shall do all things necessary and
provide all documents, evidence and information to enable the Security
Trustee to collect or recover any moneys which at any time become payable
in respect of the obligatory
insurances.
|
30
|
13.15
|
Provision of copies of
communications. The Corporate Guarantor shall provide
the Security Trustee, at the time of each such communication, copies of
all material written communications between the Corporate Guarantor
and:
|
|
(a)
|
the
approved brokers; and
|
|
(b)
|
the
approved protection and indemnity and/or war risks associations;
and
|
|
(c)
|
the
approved insurance companies and/or underwriters, which relate directly or
indirectly to:
|
|
|
(i)
|
the
Corporate Guarantor's obligations relating to the obligatory insurances
including, without limitation, all requisite declarations and payments of
additional premiums or calls; and
|
|
|
(ii)
|
any
credit arrangements made between the Corporate Guarantor and any of the
persons referred to in paragraphs (a) or (b) above relating wholly or
partly to the effecting or maintenance of the obligatory
insurances.
|
|
13.16
|
Provision of
information. In addition, the Corporate Guarantor shall
promptly provide the Security Trustee (or any persons which it may
designate) with any information which the Security Trustee (or any such
designated person) requests for the purpose
of:
|
|
(a)
|
obtaining
or preparing any report from an independent marine insurance broker as to
the adequacy of the obligatory insurances effected or proposed to be
effected; and/or
|
|
(b)
|
effecting,
maintaining or renewing any such insurances as are referred to in Clause
13.17 below or dealing with or considering any matters relating to any
such insurances,
|
|
|
and
the Corporate Guarantor shall, forthwith upon demand, indemnify the
Security Trustee in respect of all fees and other expenses incurred by or
for the account of the Security Trustee in connection with any such report
as is referred to in paragraph (a)
above.
|
|
13.17
|
Mortgagees’ interest,
additional perils. The Lenders shall be entitled from
time to time to effect, maintain and renew a mortgagee’s interest
additional perils insurance and a mortgagees’ interest marine insurance in
an amount equal to 110% of the aggregate of the Loan and the Swap Exposure
and otherwise on such terms, through such insurers and generally in such
manner as the Lenders may from time to time consider appropriate and the
Corporate Guarantor shall upon demand fully indemnify the Lenders in
respect of all premiums and other expenses which are incurred in
connection with or with a view to effecting, maintaining or renewing any
such insurance or dealing with, or considering, any matter arising out of
any such insurance.
|
|
13.18
|
Review of insurance
requirements. The Majority Lenders shall be entitled to
review the requirements of this Clause 13 from time to time in order to
take account of any changes in circumstances after the date of this
Agreement which are, in the opinion of the Majority Lenders, significant
and capable of affecting the Corporate Guarantor or the Ship and its or
their insurance (including, without limitation, changes in the
availability or the cost of insurance coverage or the risks to which the
Corporate Guarantor may be subject), and may appoint insurance consultants
in relation to this review at the cost of the Corporate
Guarantor.
|
|
13.19
|
Modification of insurance
requirements. The Security Trustee shall notify the
Corporate Guarantor of any proposed modification under Clause 13.18 to the
requirements of this Clause 13 which the Majority Lenders consider
appropriate in the circumstances, and such modification shall take effect
on and from the date it is notified in writing to the Corporate Guarantor
as an amendment to this Clause 13 and shall bind the Corporate Guarantor
accordingly.
|
31
|
13.20
|
Compliance with
instructions. The Security Trustee shall be entitled
(without prejudice to or limitation of any other rights which it may have
or acquire under any Finance Document) to require the Ship to remain at
any safe port or to proceed to and remain at any safe port designated by
the Security Trustee until the Corporate Guarantor implements any
amendments to the terms of the obligatory insurances and any operational
changes required as a result of a notice served under Clause
13.19.
|
|
14
|
SHIP
COVENANTS
|
|
14.1
|
General. The
Corporate Guarantor also undertakes with each Creditor Party to procure
that the Corporate Guarantor will comply with the following provisions of
this Clause 14 at all times during the Security Period except as the
Agent, with the authority of the Majority Lenders, may otherwise
permit.
|
|
14.2
|
Ship's name and
registration. The Corporate Guarantor shall keep the
Ship registered in its name under the Approved Flag; shall not do or allow
to be done anything as a result of which such registration might be
cancelled or imperilled; and shall not change the name or port of registry
of the Ship without the prior written consent of the Agent (acting on the
authority of the Majority Lenders).
|
|
14.3
|
Repair and
classification. The Corporate Guarantor shall keep the
Ship in a good and safe condition and state of
repair:
|
|
(a)
|
consistent
with first-class ship ownership and management
practice;
|
|
(b)
|
so
as to maintain the Ship with the highest classification available for
vessels of the same age, type and specification as the Ship with Lloyd’s
Register of Shipping (or such other first class classification society as
may be approved by the Security Trustee), free of outstanding
recommendations and conditions affecting the Ship’s class;
and
|
|
(c)
|
so
as to comply with all laws and regulations applicable to vessels
registered at ports in the Approved Flag State or to vessels trading to
any jurisdiction to which the Ship may trade from time to time, including
but not limited to the ISM Code and the ISPS
Code.
|
|
14.4
|
Modification. The
Corporate Guarantor shall not make any modification or repairs to, or
replacement of, the Ship or equipment installed on her which would or
might materially alter the structure, type or performance characteristics
of the Ship or materially reduce her
value.
|
|
14.5
|
Removal of
parts. The Corporate Guarantor shall not remove any
material part of the Ship, or any item of equipment installed on, the Ship
unless the part or item so removed is forthwith replaced by a suitable
part or item which is in the same condition as or better condition than
the part or item removed, is free from any Security Interest or any right
in favour of any person other than the Lenders and becomes on installation
on the Ship the property of the Corporate Guarantor and subject to the
security constituted by the relevant Mortgage Provided that the
Corporate Guarantor may install equipment owned by a third party if the
equipment can be removed without any risk of damage to the
Ship.
|
|
14.6
|
Surveys. The
Corporate Guarantor shall submit the Ship regularly to all periodical or
other surveys which may be required for classification purposes and, if so
required by the Majority Lenders, provide the Security Trustee with copies
of all survey reports.
|
|
14.7
|
Inspection. The
Corporate Guarantor shall permit the Security Trustee (by surveyors or
other persons appointed by it for that purpose) to board the Ship at all
reasonable times to inspect her condition or to satisfy themselves about
proposed or executed repairs and shall afford all proper facilities for
such inspections. Provided that the Ship is found to be in
satisfactory condition, the cost of such inspections shall be borne by the
Corporate Guarantor not more than once per
year.
|
32
|
14.8
|
Prevention of and release from
arrest. The Corporate Guarantor shall promptly
discharge:
|
|
(a)
|
all
liabilities which give or may give rise to maritime or possessory liens on
or claims enforceable against the Ship, the Earnings or the
Insurances;
|
|
(b)
|
all
taxes, dues and other amounts charged in respect of the Ship, the Earnings
or the Insurances; and
|
|
(c)
|
all
other outgoings whatsoever in respect of the Ship, the Earnings or the
Insurances,
|
|
|
and,
forthwith upon receiving notice of the arrest of the Ship, or of her
detention in exercise or purported exercise of any lien or claim, the
Corporate Guarantor shall procure her release by providing bail or
otherwise as the circumstances may
require.
|
|
14.9
|
Compliance with laws
etc. The Corporate Guarantor
shall:
|
|
(a)
|
comply,
or procure compliance with the ISM Code, the ISPS Code, all Environmental
Laws and all other laws or regulations relating to the Ship owned by it,
its ownership, operation and management or to the business of the
Corporate Guarantor (including, without limitation, the obtaining of all
relevant certificates of financial responsibility and any other matters
required for entering United States territorial waters or calling at any
United States Port);
|
|
(b)
|
not
employ the Ship nor allow her employment in any manner contrary to any law
or regulation in any relevant jurisdiction including but not limited to
the ISM Code and the ISPS Code; and
|
|
(c)
|
in
the event of hostilities in any part of the world (whether war is declared
or not), not cause or permit the Ship to enter or trade to any zone which
is declared a war zone by any government or by the Ship's war risks
insurers unless the prior written consent of the Majority Lenders has been
given and the Corporate Guarantor has (at its expense) effected any
special, additional or modified insurance cover which the Majority Lenders
may require,
|
|
14.10
|
Provision of
information. The Corporate Guarantor shall promptly
provide the Security Trustee with any information which the Majority
Lenders request regarding:
|
|
(a)
|
the
Ship, her employment, position and
engagements;
|
|
(b)
|
the
Earnings and payments and amounts due to the master and crew of the
Ship;
|
|
(c)
|
any
expenses incurred, or likely to be incurred, in connection with the
operation, maintenance or repair of the Ship and any payments made in
respect of the Ship;
|
|
(d)
|
any
towages and salvages;
|
|
(e)
|
its
compliance, the Approved Manager’s compliance or the compliance of the
Ship with the ISM Code
|
|
|
and,
upon the Security Trustee's request, provide copies of any current charter
relating to the Ship and of any current charter guarantee, and copies of
the ISM Code and ISPS Code
documentation.
|
|
14.11
|
Notification of certain
events. The Corporate Guarantor shall immediately notify
the Security Trustee by letter of:
|
|
(a)
|
any
casualty which is or is likely to be or to become a Major
Casualty;
|
33
|
(b)
|
any
occurrence as a result of which the Ship has become or is, by the passing
of time or otherwise, likely to become a Total
Loss;
|
|
(c)
|
any
requirement or recommendation made by any insurer or classification
society or by any competent authority which is not immediately complied
with;
|
|
(d)
|
any
arrest or detention of the Ship, any exercise or purported exercise of any
lien on the Ship or her Earnings or any requisition of the Ship for
hire;
|
|
(e)
|
any
intended dry docking of the Ship;
|
|
(f)
|
any
Environmental Claim made against the Corporate Guarantor or in connection
with the Ship or any Environmental
Incident;
|
|
(g)
|
any
claim for breach of the ISM Code or the ISPS Code being made against the
Corporate Guarantor, the Approved Manager or otherwise in connection with
the Ship; or
|
|
(h)
|
any
other matter, event or incident, actual or threatened, the effect of which
will or could lead to the ISM Code or the ISPS Code not being complied
with,
|
|
|
and
the Corporate Guarantor shall keep the Security Trustee advised in writing
on a regular basis and in such detail as the Security Trustee shall
require of the Corporate Guarantor’s, the Approved Manager’s or any other
person's response to any of those events or
matters.
|
|
14.12
|
Restrictions on chartering,
appointment of managers, etc. The Corporate Guarantor
shall not without the prior written consent of the Majority Lenders (such
consent not to be unreasonably
withheld):
|
|
(a)
|
let
the Ship on demise charter for any
period;
|
|
(b)
|
enter
into any time or consecutive voyage charter in respect of the Ship for a
term which exceeds, or which by virtue of any optional extensions may
exceed, 13 months;
|
|
(c)
|
enter
into any charter in relation to the Ship under which more than 2 months'
hire (or the equivalent) is payable in
advance;
|
|
(d)
|
charter
the Ship otherwise than on bona fide arm's length terms at the time when
the Ship is fixed;
|
|
(e)
|
appoint
a manager of the Ship other than the Approved Manager or agree to any
alteration to the terms of the Approved Manager's
appointment;
|
|
(f)
|
de-activate
or lay up the Ship; or
|
|
(g)
|
put
the Ship into the possession of any person for the purpose of work being
done upon her in an amount exceeding or likely to exceed Three hundred and
fifty thousand United States Dollars ($350,000) (or the equivalent in any
other currency) unless that person has first given to the Security Trustee
and in terms satisfactory to it a written undertaking not to exercise any
lien on the Ship or her Earnings for the cost of such work or
otherwise.
|
|
14.13
|
Notice of
Mortgage. The Corporate Guarantor shall keep the
Mortgage registered against the Ship as a valid first priority mortgage,
carry on board the Ship a certified copy of the relevant Mortgage and
place and maintain in a conspicuous place in the navigation room and the
Master's cabin of the Ship a framed printed notice stating that the Ship
is mortgaged by the Corporate Guarantor to the
Lenders.
|
34
|
14.14
|
Sharing of
Earnings. The Corporate Guarantor shall not enter
into any agreement or arrangement for the sharing of any
Earnings.
|
|
14.15
|
ISPS
Code. The Corporate Guarantor shall comply with the ISPS
Code and in particular, without limitation,
shall:
|
|
(a)
|
procure
that the Ship and the company responsible for such Ship’s compliance with
the ISPS Code, comply with the ISPS Code;
and
|
|
(b)
|
maintain
for the Ship an ISSC; and
|
|
(c)
|
notify
the Lender immediately in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the
ISSC.
|
|
14.16
|
Time Charter
Assignment. If the Corporate Guarantor enters into any
charter in respect of the Ship which is of twelve (12) months or more in
duration, or is capable of exceeding twelve (12) months in duration, the
Corporate Guarantor shall, at the request of the Agent, execute in favour
of the Security Trustee an assignment and notice of assignment (to be
acknowledged by the relevant charterer) of such charter in such form and
on such terms as the Agent may require, and shall deliver to the Agent
such other documents equivalent to those referred to at paragraphs 3, 4
and 5 of Schedule 4 hereof as the Agent may
require.
|
|
14.17
|
No freight derivatives.
Neither the Borrower nor the Corporate Guarantor shall enter into
or agree to enter into (without the consent of the Majority Lenders) any
freight derivatives or any other instruments which have the effect of
hedging forward exposure to freight
derivatives.
|
|
15
|
SECURITY
COVER
|
|
15.1
|
Provision of additional
security cover; prepayment of Loan. The Borrower
undertakes with each Creditor Party that if the Agent notifies the
Borrower that:
|
|
(a)
|
the
Fair Market Value (determined as provided below) of the Ship;
plus
|
|
(b)
|
the
net realisable value of any additional security previously provided under
this Clause 15;
|
is below
one hundred and sixty seven per cent (167%) of the aggregate amount of the Loan
and the Swap Exposure, the Borrower will, within 1 month after the date on which
the Agent's notice is served, either:
|
|
(i)
|
provide,
or ensure that a third party provides, additional security which, in the
opinion of the Majority Lenders, has a net realisable value at least equal
to the shortfall and which consists of either (a) cash pledged to the
Security Trustee or (b) a Security Interest (including, but not limited
to, a first priority mortgage over another vessel), covering such asset or
assets and documented in such terms as the Agent may, with authorisation
from the Majority Lenders, approve or require;
or
|
|
|
(ii)
|
prepay
in accordance with Clause 8 such part (at least) of the Loan as will
eliminate the shortfall.
|
|
15.2
|
Meaning of additional
security. In Clause 15.1 “security” means a
Security Interest over an asset or assets (whether securing the Borrower’s
liabilities under the Finance Documents or a guarantee in respect of those
liabilities), or a guarantee, letter of credit or other security in
respect of the Borrower’s liabilities under the Finance
Documents.
|
35
|
15.3
|
Requirement for additional
documents. The Borrower shall not be deemed to have
complied with Clause 15.1 (i) above until the Agent has received in
connection with the additional security certified copies of documents of
the kinds referred to in paragraphs 3, 4 and 5 of Schedule 4 below and
such legal opinions in terms acceptable to the Majority Lenders from such
lawyers as they may select.
|
|
15.4
|
Valuation of
Ship. Subject to the following provisions of this Clause
15.4, the Fair Market Value of the Ship shall be
determined:
|
|
(a)
|
in
Dollars, as at the date of (or no earlier than 10 days prior to) such
valuation;
|
|
(b)
|
by
taking the average of two written valuations prepared by any two of the
following independent sale and purchase shipbrokers which the Agent, after
consultation with the Borrower, has approved or appointed for the purpose:
[Arrow Shipping (UK) Ltd., Xxxxx Xxxxxxxx Xxxxxx, Bassoe Offshore
Consultants Ltd., Clarksons PLC, Fearnleys AS, Maersk Broker (UK) Ltd., X
X Xxxxxx Shipbrokers AS, SSY Consultancy & Research Ltd., Galbraiths
Ltd. and XX Xxxxxx Shipbrokers
Ltd.];
|
|
(c)
|
with
or without physical inspection of the Ship (as the Agent may
require);
|
|
(d)
|
on
the basis of a sale for prompt delivery for cash on normal arm's length
commercial form as between a willing seller and a willing buyer, free of
any existing charter or other contract of
employment;
|
|
(e)
|
after
deducting the estimated amount of the usual and reasonable expenses which
would be incurred in connection with the
sale.
|
|
15.5
|
Value of additional vessel
security. The net realisable value of any additional
security which is provided under Clause 15.2 and which consists of a
Security Interest over a vessel shall be that shown by way of a valuation
complying with the requirements of Clause
15.4.
|
|
15.6
|
Valuations
binding. Any valuation under Clause 15.1(i), 15.4 or
15.5 shall be binding and conclusive as regards the Borrower, as shall be
any valuation which the Majority Lenders make of a security which does not
consist of or include a Security
Interest.
|
|
15.7
|
Provision of
information. The Borrower shall (and shall procure that
the Corporate Guarantor shall) promptly provide the Agent and any
shipbroker or expert acting under Clause 15.4 or 15.5 with any information
which the Agent or the shipbroker or expert may request for the purposes
of the valuation; and, if the Borrower (or the Corporate Guarantor) fails
to provide the information by the date specified in the request, the
valuation may be made on any basis and assumptions which the shipbroker or
the Majority Lenders (or the expert appointed by them) consider
prudent.
|
|
15.8
|
Payment of valuation
expenses. Without prejudice to the generality of the
Borrower’s obligations under Clauses 20.2, 20.3 and 21.3, the Borrower
shall, on demand, pay the Agent the amount of the fees and expenses of any
shipbrokers or experts instructed by the Agent under this Clause and all
legal and other expenses incurred by any Creditor Party in connection with
any matter arising out of this
Clause.
|
|
15.9
|
Frequency of
valuations. The Agent shall be entitled to obtain a
valuation of the Ship at any time during the Security Period, provided
that the costs and expenses of such shall only be borne by the Borrower
four (4) times per year (unless an Event of Default has
occurred).
|
36
|
16
|
PAYMENTS
AND CALCULATIONS
|
|
16.1
|
Currency and method of
payments. All payments to be made by the Lenders or by
the Borrower under a Finance Document shall be made to the Agent or to the
Security Trustee, in the case of an amount payable to
it:
|
|
|
(i)
|
by
not later than 11.00 a.m. (New York City time) on the due
date;
|
|
|
(ii)
|
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);
|
|
|
(iii)
|
if
in Dollars, to the account of the Agent with such bank in New York as the
Agent may from time to time notify to the Borrower and the other Creditor
Parties; and
|
|
|
(iv)
|
in
the case of an amount payable to the Security Trustee, to such account as
it may from time to time notify to the Borrower and the other Creditor
Parties.
|
|
16.2
|
Payment on non-Business
Day. If any payment by the Borrower 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.
|
16.3
|
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.
|
|
16.4
|
Distribution of payments to
Creditor Parties. Subject to Clauses 16.5, 16.6 and
16.7:
|
|
(a)
|
any
amount received by the Agent under a Finance Document for distribution or
remittance to a Lender, a Swap Bank or the Security Trustee shall be made
available by the Agent to that Lender, that Swap Bank or, as the case may
be, the Security Trustee by payment, with funds having the same value as
the funds received, to such account as the Lender or the Swap Bank or the
Security Trustee may have notified to the Agent not less than 5 Business
Days previously; and
|
|
(b)
|
amounts
to be applied in satisfying amounts of a particular category which are due
to the Lenders or the Swap Banks generally shall be distributed by the
Agent to each Lender and each Swap Bank pro rata to the amount in that
category which is due to it.
|
|
16.5
|
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 Lender or a Swap Bank, deduct and withhold from that
amount any sum which is then due and payable to the Agent from that Lender
or that Swap Bank under any Finance Document or any sum which the Agent is
then entitled under any Finance Document to require that Lender or that
Swap Bank to pay on demand.
|
37
|
16.6
|
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 Lender or any Swap Bank
any sum which the Agent is expecting to receive for remittance or
distribution to the Borrower or that Lender or that Swap Bank until the
Agent has satisfied itself that it has received that
sum.
|
|
16.7
|
Refund to Agent of monies not
received. If and to the extent that the Agent makes
available a sum to the Borrower or a Lender or a Swap Bank, without first
having received that sum, the Borrower or (as the case may be) the Lender
or the Swap Bank 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.
|
|
16.8
|
Agent may assume
receipt. Clause 16.7 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.
|
|
16.9
|
Creditor Party
accounts. Each Creditor Party shall maintain accounts
showing the amounts owing to it by the Borrower and each Security Party
under the Finance Documents and all payments in respect of those amounts
made by the Borrower and any Security
Party.
|
|
16.10
|
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 Borrower and each
Security Party under the Finance Documents and all payments in respect of
those amounts made by the Borrower and any Security
Party.
|
|
16.11
|
Accounts prima facie
evidence. If any accounts maintained under Clauses 16.9
and 16.10 show an amount to be owing by the Borrower or a Security Party
to a Creditor Party, those accounts shall, absent manifest error, be prima
facie evidence that that amount is owing to that Creditor
Party.
|
|
17
|
APPLICATION
OF RECEIPTS
|
|
17.1
|
Normal order of
application. Except as any Finance Document may
otherwise provide, any sums which are received or recovered by any
Creditor Party under or by virtue of any Finance Document shall be
applied:-
|
|
(a)
|
FIRST:
in or towards satisfaction of any amounts then due and payable under the
Finance Documents and the Master Agreements in the following
order and proportions:
|
|
|
(i)
|
first,
in or towards satisfaction pro rata of all amounts then due and payable to
the Creditor Parties under the Finance Documents other than those amounts
referred to at (ii) and (iii) below (including, but without limitation,
all amounts payable by the Borrower under Clauses 20, 21 and 22 of this
Agreement or by the Borrower or any Security Party under any corresponding
or similar provision in any other Finance
Document);
|
|
|
(ii)
|
secondly,
in or towards satisfaction pro rata of any and all amounts of interest or
default interest payable to the Creditor Parties under the Finance
Documents; and
|
|
|
(iii)
|
thirdly,
in or towards satisfaction of the Loan;
and
|
38
|
|
(iv)
|
fourthly,
in or towards satisfaction pro rata of the Swap Exposure of each Swap Bank
(calculated as at the actual Early Termination Date applying to each
particular Designated Transaction, or if no such Early Termination Date
shall have occurred, calculated as if an Early Termination Date occurred
on the date of application or distribution
hereunder);
|
|
(b)
|
SECONDLY:
in retention of an amount equal to any amount not then due and payable
under any Finance Document or any Master Agreement (in respect of any
Designated Transaction) but which the Agent, by notice to the Borrower,
the Security Parties and the other Creditor Parties, states in its opinion
will or may become due and payable in the future and, upon those amounts
becoming due and payable, in or towards satisfaction of them in accordance
with the provisions of Clause 17.1(a);
and
|
|
(c)
|
THIRDLY:
any surplus shall be paid to the Borrower or to any other person appearing
to be entitled to it.
|
|
17.2
|
Variation of order of
application. The Agent may, with the authorisation of
the Majority Lenders by notice to the Borrower, the Security Parties and
the other Creditor Parties provide for a different manner of application
from that set out in Clause 17.1 either as regards a specified sum or sums
or as regards sums in a specified category or
categories.
|
|
17.3
|
Notice of variation of order of
application. The Agent may give notices under Xxxxxx
17.2 from time to time; and such a notice may be stated to apply not only
to sums which may be received or recovered in the future, but also to any
sum which has been received or recovered on or after the third Business
Day before the date on which the notice is
served.
|
|
17.4
|
Appropriation rights
overriden. This Clause 17 and any notice which the Agent
gives under Clause 17.2 shall override any right of appropriation
possessed, and any appropriation made, by the Borrower or any Security
Party.
|
|
18
|
APPLICATION
OF EARNINGS
|
|
18.1
|
Payment of
Earnings. The Borrower undertakes with each Creditor
Party to ensure that, throughout the Security
Period:
|
|
(a)
|
subject
only to the provisions of the General Assignment, all the Earnings are
paid to the Operating Account; and
|
|
(b)
|
all
payments by a Swap Bank to the Borrower under each Designated Transaction
are paid to the Operating Account.
|
|
18.2
|
Location of
accounts. The Borrower shall
promptly:
|
|
(a)
|
comply
with any requirement of the Agent as to the location or re-location of the
Operating Account;
|
|
(b)
|
execute
any documents which the Agent specifies to create or maintain in favour of
the Security Trustee a Security Interest over (and/or rights of set-off,
consolidation or other rights in relation to) the Operating
Account.
|
|
18.3
|
Debits for expenses
etc. The Agent shall be entitled (but not obliged) from
time to time to debit the Operating Account without prior notice in order
to discharge any amount due and payable under Clause 20 or 21 to a
Creditor Party or payment of which any Creditor Party has become entitled
to demand under Clause 20 or 21.
|
39
|
18.4
|
Borrower's obligations
unaffected. The provisions of this Clause 18 do not
affect:
|
|
(a)
|
the
liability of the Borrower to make payments of principal and interest on
the due dates; or
|
|
(b)
|
any
other liability or obligation of the Borrower or any Security Party under
any Finance Document.
|
|
19
|
EVENTS
OF DEFAULT
|
|
19.1
|
Events of
Default. An Event of Default occurs
if:
|
|
(a)
|
the
Borrower or any Security Party fails to pay when due or (if so payable) on
demand any sum payable under a Finance Document or under any document
relating to a Finance Document; or
|
|
(b)
|
any
breach occurs of Clause 9.2, 11.2, 11.3, 12.2, 12.3, 12.4, 12.5, 14.17 or
15.1; or
|
|
(c)
|
any
breach by the Borrower or any Security Party 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 3 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 by the Borrower or any Security Party occurs of any provision of a
Finance Document (other than a breach covered by paragraphs (a), (b) or
(c) above); or
|
|
(e)
|
any
representation, warranty or statement made by, or by an officer of, the
Borrower or a Security Party in a Finance Document or in a Drawdown Notice
or any other notice or document relating to a Finance Document is untrue
or misleading when it is made; or
|
|
(f)
|
any
of the following occurs in relation to any Financial Indebtedness of a
Relevant Person:
|
|
|
(i)
|
any
Financial Indebtedness of a Relevant Person is not paid when due or, if so
payable, on demand; or
|
|
|
(ii)
|
any
Financial Indebtedness of a Relevant Person becomes due and payable or
capable of being declared due and payable prior to its stated maturity
date as a consequence of any event of default;
or
|
|
|
(iii)
|
a
lease, hire purchase agreement or charter creating any Financial
Indebtedness of a Relevant Person is terminated by the lessor or owner or
becomes capable of being terminated as a consequence of any termination
event; or
|
|
|
(iv)
|
any
overdraft, loan, note issuance, acceptance credit, letter of credit,
guarantee, foreign exchange or other facility, or any swap or other
derivative contract or transaction, relating to any Financial Indebtedness
of a Relevant Person ceases to be available or becomes capable of being
terminated as a result of any event of default, or cash cover is required,
or becomes capable of being required, in respect of such a facility as a
result of any event of default; or
|
|
|
(v)
|
any
Security Interest securing any Financial Indebtedness of a Relevant Person
becomes enforceable; or
|
|
(g)
|
any
of the following occurs in relation to a Relevant
Person:
|
40
|
|
(i)
|
a
Relevant Person becomes, in the opinion of the Majority Xxxxxxx, unable to
pay its debts as they fall due; or
|
|
|
(ii)
|
any
assets of a Relevant Person are subject to any form of execution,
attachment, arrest, sequestration or distress in respect of a sum of, or
sums aggregating, $250,000 or more or the equivalent in another currency
unless such execution, attachment, arrest, sequestration or distress is
being contested in good faith and on substantial grounds and is discussed
or withdrawn within thirty (30) days of the occurrence thereof;
or
|
|
|
(iii)
|
any
administrative or other receiver is appointed over any asset of a Relevant
Person; or
|
|
|
(iv)
|
a
Relevant Person makes any formal declaration of bankruptcy or any formal
statement to the effect that it is insolvent or likely to become
insolvent, or a winding up or administration order is made in relation to
a Relevant Person, or the members or directors of a Relevant Person pass a
resolution to the effect that it should be wound up, placed in
administration or cease to carry on business, save that this paragraph
does not apply to a fully solvent winding up of a Relevant Person other
than a Borrower or the Corporate Guarantor which is, or is to be, effected
for the purposes of an amalgamation or reconstruction previously approved
by the Majority Lenders and effected not later than 3 months after the
commencement of the winding up; or
|
|
|
(v)
|
a
petition is presented in any Pertinent Jurisdiction for the winding up or
administration, or the appointment of a provisional liquidator, of a
Relevant Person unless the petition is being contested in good faith and
on substantial grounds and is dismissed or withdrawn within 30 days of the
presentation of the petition; or
|
|
|
(vi)
|
a
Relevant Person petitions a court, or presents any proposal for, any form
of judicial or non-judicial suspension or deferral of payments,
reorganisation of its debt (or certain of its debt) or arrangement with
all or a substantial proportion (by number or value) of its creditors or
of any class of them or any such suspension or deferral of payments,
reorganisation or arrangement is effected by court order, contract or
otherwise; or
|
|
|
(vii)
|
any
meeting of the members or directors of a Relevant Person is summoned for
the purpose of considering a resolution or proposal to authorise or take
any action of a type described in paragraphs (iii), (iv), (v) or (vi)
above; or
|
|
|
(viii)
|
in
a Pertinent Jurisdiction other than England, any event occurs or any
procedure is commenced which, in the opinion of the Majority Lenders, is
similar to any of the foregoing; or
|
|
(h)
|
the
Borrower ceases or suspends carrying on its business or a part of its
business which, in the opinion of the Majority Lenders, is material in the
context of this Agreement; or
|
|
(i)
|
it
becomes unlawful in any Pertinent Jurisdiction or
impossible:
|
|
|
(i)
|
for
the Borrower or any Security Party to discharge any liability under a
Finance Document or to comply with any other obligation which the Majority
Lenders consider material under a Finance Document;
or
|
|
|
(ii)
|
for
the Agent, the Security Trustee, the Lenders or the Swap Banks to exercise
or enforce any right under, or to enforce any Security Interest created
by, a Finance Document; or
|
41
|
(j)
|
any
consent necessary to enable the Corporate Guarantor to own, operate or
charter the Ship or to enable the Borrower or any Security Party to comply
with any provision which the Majority Lenders consider material of a
Finance Document is not granted, expires without being renewed, is revoked
or becomes liable to revocation or any condition of such a consent is not
fulfilled; or
|
|
(k)
|
it
appears to the Majority Lenders that, without their prior consent, a
change has occurred or probably has occurred after the date of this
Agreement in the management of, or in the legal or beneficial ownership of
any of the shares in, the Corporate Guarantor or in the ultimate control
of the voting rights attaching to any of those shares;
or
|
|
(l)
|
any
provision which the Majority Lenders consider material of a Finance
Document proves to have been or becomes invalid or unenforceable, or a
Security Interest created by a Finance Document proves to have been or
becomes invalid or unenforceable or such a Security Interest proves to
have ranked after, or loses its priority to, another Security Interest or
any other third party claim or interest;
or
|
|
(m)
|
the
security constituted by a Finance Document is in any way imperilled or in
jeopardy; or
|
|
(n)
|
an
Event of Default (as defined in section 14 of a Master Agreement) occurs;
or
|
|
(o)
|
a
Master Agreement is terminated, cancelled, suspended, rescinded or revoked
or otherwise ceases to remain in full force and effect for any reason
except with the consent of the Agent, acting with the authorisation of the
Majority Lenders; or
|
|
(p)
|
any
other event occurs or any other circumstances arise or develop including,
without limitation:
|
|
|
(i)
|
a
change in the financial position, state of affairs or prospects of the
Borrower or the Corporate Guarantor;
or
|
|
|
(ii)
|
any
accident or other event involving the Ship or another vessel owned,
chartered or operated by a Relevant
Person,
|
|
|
in
the light of which the Majority Lenders consider that there is a
significant risk that any Security Party is, or will later become, unable
to discharge its liabilities under the Finance Documents as they fall
due.
|
|
19.2
|
Actions following an Event of
Default. On, or at any time after, the occurrence of an
Event of Default:
|
|
(a)
|
the
Agent may, and if so instructed by the Majority Lenders, the Agent
shall:
|
|
|
(i)
|
serve
on the Borrower a notice stating that the Commitments and all other
obligations of each Lender to the Borrower under this Agreement are
terminated; and/or
|
|
|
(ii)
|
serve
on the Borrower a notice stating that the Loan, all accrued interest and
all other amounts accrued or owing under this Agreement are immediately
due and payable or are due and payable on demand;
and/or
|
|
|
(iii)
|
take
any other action which, as a result of the Event of Default or any notice
served under paragraph (i) or (ii) above, the Agent and/or the Lenders are
entitled to take under any Finance Document or any applicable law;
and/or
|
42
|
(b)
|
the
Security Trustee may, and if so instructed by the Agent, acting with the
authorisation of the Majority Lenders, the Security Trustee shall take any
action which, as a result of the Event of Default or any notice served
under paragraph (a) (i) or (ii) above, the Security Trustee, the Agent
and/or the Lenders are entitled to take under any Finance Document or any
applicable law.
|
|
19.3
|
Termination of
Commitments. On the service of a notice under paragraph
(a)(i) of Clause 19.2, the Commitments and all other obligations of each
Lender to the Borrower under this Agreement shall
terminate.
|
|
19.4
|
Acceleration of
Loan. On the service of a notice under paragraph (a)(ii)
of Clause 19.2, the Loan, all accrued interest and all other amounts
accrued or owing from the Borrower or any Security Party under this
Agreement and every other Finance Document shall become immediately due
and payable or, as the case may be, payable on
demand.
|
|
19.5
|
Multiple notices; action
without notice. The Agent may serve notices under
paragraphs (a) (i) and (ii) of Clause 19.2 simultaneously or on different
dates and it and/or the Security Trustee 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.
|
|
19.6
|
Notification of Creditor
Parties and Security Parties. The Agent shall send to
each Lender, each Swap Bank, the Security Trustee and each Security Party
a copy or the text of any notice which the Agent serves on the Borrower
under Clause 19.2; but the notice shall become effective when it is served
on the Borrower, and no failure or delay by the Agent to send a copy or
the text of the notice to any other person shall invalidate the notice or
provide the Borrower or any Security Party with any form of claim or
defence.
|
|
19.7
|
Creditor Parties’ rights
unimpaired. Nothing in this Clause shall be taken to
impair or restrict the exercise of any right given to individual Lenders
or Swap Banks under a Finance Document or the general law; and, in
particular, this Clause is without prejudice to Clause
3.1.
|
|
19.8
|
Exclusion of Creditor Party
Liability. No Creditor Party, and no receiver or manager
appointed by the Security Trustee, shall have any liability to the
Borrower or a Security Party:
|
|
(a)
|
for
any loss caused by an exercise of rights under, or enforcement of a
Security Interest created by, a Finance Document or by any failure or
delay to exercise such a right or to enforce such a Security Interest;
or
|
|
(b)
|
as
mortgagee in possession or otherwise, for any income or principal amount
which might have been produced by or realised from any asset comprised in
such a Security Interest or for any reduction (however caused) in the
value of such an asset;
|
except
that this does not exempt a Creditor Party or a receiver or manager from
liability for losses shown to have been caused by the gross negligence or the
wilful misconduct of such Creditor Party's own officers and employees or ( as
the case may be) such receiver's or manager's own partners or
employees.
|
19.9
|
Relevant
Persons. In this Clause 19 “a Relevant Person” means
the Borrower and the Corporate
Guarantor.
|
|
19.10
|
Interpretation. In
Clause 19.1(f) references to an event of default or a termination event
include any event, howsoever described, which is similar to an event of
default in a facility agreement or a termination event in a finance lease;
and in Clause 19.1(g) “petition” includes an
application.
|
43
|
19.11
|
Position of Swap
Banks. Neither the Agent nor the Security Trustee shall
be obliged, in connection with any action taken or proposed to be taken
under or pursuant to the foregoing provisions of this Clause 19, to have
any regard to the requirements of a Swap Bank except to the extent that
such Swap Bank is also a Lender.
|
|
20
|
FEES
AND EXPENSES
|
|
20.1
|
Arrangement, commitment and
agency fees. The Borrower shall pay to the Agent the
arrangement, commitment and agency fees as set out in the fee letter
addressed by the Borrower to the Agent and dated the same date as this
Agreement.
|
|
20.2
|
Costs of negotiation,
preparation etc. The Borrower shall pay to the Agent on
its demand the amount of all expenses incurred by the Agent or the
Security Trustee in connection with the negotiation, preparation,
execution or registration of any Finance Document or any related document
or with any transaction contemplated by a Finance Document or a related
document.
|
|
20.3
|
Costs of variations,
amendments, enforcement etc. The Borrower shall pay to
the Agent, on the Agent's demand, the amount of all expenses incurred by a
Lender 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 the Lenders, the Swap Banks, the Majority Lenders or
the Creditor Party concerned under or in connection with a Finance
Document, or any request for such a consent or
waiver;
|
|
(c)
|
the
valuation of any security provided or offered under Clause 15 or any other
matter relating to such security;
|
|
(d)
|
any
step taken by the Lender or the Swap Bank concerned 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,
whether or not such as would be allowed under rules of court or any taxation or
other procedure carried out under such rules.
|
20.4
|
Documentary
taxes. The Borrower shall promptly pay any tax payable
on or by reference to any Finance Document, and shall, on the Agent's
demand, fully indemnify each Creditor Party against any liabilities and
expenses resulting from any failure or delay by the Borrower to pay such a
tax.
|
|
20.5
|
Certification of
amounts. A notice which is signed by two officers of a
Creditor Party, which states that a specified amount, or aggregate amount,
is due to that Creditor Party under this Clause 20 and which indicates
(without necessarily specifying a detailed breakdown) the matters in
respect of which the amount, or aggregate amount, is due shall, save for
manifest error, be prima facie evidence that the amount, or aggregate
amount, is due.
|
|
21
|
INDEMNITIES
|
|
21.1
|
Indemnities regarding borrowing
and repayment of Loan. The Borrower shall fully
indemnify the Agent and each Lender on the Agent's demand and the Security
Trustee on its demand in respect of all expenses, liabilities and losses
which are incurred by that Creditor Party, or which that Creditor Party
reasonably and with due diligence estimates that it will incur, as a
result of or in connection with:
|
44
|
(a)
|
an
Advance not being borrowed on the date specified in the Drawdown Notice
for any reason other than a default by the Lender claiming the
indemnity;
|
|
(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 under Clause
7);
|
|
(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
19;
|
|
|
and
in respect of any tax (other than tax on its overall net income) for which
a Creditor Party is liable in connection with any amount paid or payable
to that Creditor Party (whether for its own account or otherwise) under
any Finance Document.
|
|
21.2
|
Breakage
costs. Without limiting its generality, Clause 21.1
covers any liability, expense or loss, including a loss of a prospective
profit, 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 its Contribution and/or any overdue
amount (or an aggregate amount which includes its Contribution 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 the Lender concerned) to
hedge any exposure arising under this Agreement or that part which the
Lender concerned determines is fairly attributable to this Agreement of
the amount of the liabilities, expenses or losses (including losses of
prospective profits) incurred by it in terminating, or otherwise in
connection with, a number of transactions of which this Agreement is
one.
|
|
21.3
|
Miscellaneous
indemnities. The Borrower shall fully indemnify the
Agent and the Security Trustee severally on their respective demands 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, the Agent or the Security
Trustee, 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 the Agent, the Security Trustee or any other
Creditor 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, or any bearing on,
any Finance Document, 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 the wilful misconduct of the Agent's or (as the case may be) the Security
Trustee's own officers or employees.
Without
prejudice to its generality, this Clause 21.3 covers any claims, expenses,
liabilities and losses which arise, or are asserted, under or in connection with
any law relating to safety at sea, the ISM Code, the ISPS Code or any
Environmental Law.
|
21.4
|
Extension of indemnities;
environmental indemnity. Without prejudice to its
generality, Clause 21.3 covers:
|
45
|
(a)
|
any
matter which would be covered by Clause 21.3 if any of the references in
that Clause to a Lender were a reference to the Agent or (as the case may
be) to the Security Trustee; and
|
|
(b)
|
any
liability items which arise, or are asserted, under or in connection with
any law relating to safety at sea, pollution or the protection of the
environment.
|
|
21.5
|
Currency
indemnity. If any sum due from the Borrower or any
Security Party to a Creditor 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 the Borrower or any Security Party,
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;
|
the
Borrower shall indemnify the Creditor Party concerned against the loss arising
when the amount of the payment actually received by that Creditor Party is
converted at the available rate of exchange into the Contractual
Currency.
In this
Clause 21.5, the “available
rate of exchange” means the rate at which the Creditor 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 21.5 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.
|
21.6
|
Application to Master
Agreements. For the avoidance of doubt, Xxxxxx 21.4 does
not apply in respect of sums due from the Borrower to a Swap Bank under or
in connection with a Master Agreement as to which sums the provisions of
section 8 (Contractual Currency) of that Master Agreement shall
apply.
|
|
21.7
|
Certification of
amounts. A notice which is signed by 2 officers of a
Creditor Party, which states that a specified amount, or aggregate amount,
is due to that Creditor Party under this Clause 21 and which indicates
(without necessarily specifying a detailed breakdown) the matters in
respect of which the amount, or aggregate amount, is due shall, save for
manifest error, be prima facie evidence that the amount, or aggregate
amount, is due.
|
|
21.8
|
Sums deemed due to a
Lender. For the purposes of this Clause 21, a sum
payable by the Borrower to the Agent or the Security Trustee for
distribution to a Lender shall be treated as a sum due to that
Lender.
|
|
22
|
NO
SET-OFF OR TAX DEDUCTION
|
|
22.1
|
No
deductions. All amounts due from the Borrower under a
Finance Document shall be paid:
|
|
(a)
|
without
any form of set-off, cross-claim or condition;
and
|
46
|
(b)
|
free
and clear of any tax deduction except a tax deduction which the Borrower
is required by law to make.
|
|
22.2
|
Grossing-up for
taxes. If the Borrower is required by law to make a tax
deduction from any payment:
|
|
(a)
|
the
Borrower shall notify the Agent as soon as it becomes aware of the
requirement;
|
|
(b)
|
the
Borrower 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 Creditor Party 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.
|
|
22.3
|
Evidence of payment of
taxes. Within 1 month after making any tax deduction,
the Borrower shall deliver to the Agent documentary evidence satisfactory
to the Agent that the tax had been paid to the appropriate taxation
authority.
|
|
22.4
|
Exclusion of tax on overall net
income. In this Clause 22 “tax deduction” means any
deduction or withholding for or on account of any present or future tax
except tax on a Creditor Party's overall net
income.
|
|
22.5
|
Application to Master
Agreements. For the avoidance of doubt, Xxxxxx 22 does
not apply in respect of sums due from the Borrower to a Swap Bank under or
in connection with a Master Agreement as to which sums the provisions of
section 2(d) (Deduction or Withholding for Tax) of that Master Agreement
shall apply.
|
|
23
|
ILLEGALITY,
ETC
|
|
23.1
|
Illegality. This
Clause 23 applies if a Lender (the “Notifying Lender”)
notifies the Agent 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
the Notifying Lender to maintain or give effect to any of its obligations
under this Agreement in the manner contemplated by this
Agreement.
|
|
23.2
|
Notification of
illegality. The Agent shall promptly notify the
Borrower, the Security Parties, the Security Trustee and the other Lenders
of the notice under Clause 23.1 which the Agent receives from the
Notifying Lender.
|
|
23.3
|
Prepayment; termination of
Commitment. On the Agent notifying the Borrower under
Clause 23.2, the Notifying Xxxxxx's Commitment shall terminate; and
thereupon or, if later, on the date specified in the Notifying Xxxxxx's
notice under Clause 23.1 as the date on which the notified event would
become effective the Borrower shall prepay the Notifying Lender's
Contribution in accordance with Clause
8.
|
|
23.4
|
Mitigation. If
circumstances arise which would result in a notification under
Clause 23.1 then, without in any way limiting the rights of the
Notifying Lender under Clause 23.3, the Notifying Lender shall use
reasonable endeavours to transfer its obligations, liabilities and rights
under this Agreement and the Finance Documents to another office or
financial institution not affected by the circumstances but the Notifying
Lender shall not be under any obligation to take any such action if, in
its opinion, to do would or might:
|
47
|
(a)
|
have
an adverse effect on its business, operations or financial condition;
or
|
|
(b)
|
involve
it in any activity which is unlawful or prohibited or any activity that is
contrary to, or inconsistent with, any regulation;
or
|
|
(c)
|
involve
it in any expense (unless indemnified to its satisfaction) or tax
disadvantage.
|
|
24
|
INCREASED
COSTS
|
|
24.1
|
Increased
costs. This Clause 24 applies if a Lender (the “Notifying Lender”)
notifies the Agent that the Notifying Xxxxxx considers that as a result
of:
|
|
(a)
|
the
introduction or alteration after the date of this Agreement of a law or an
alteration after the date of this Agreement in the manner in which a law
is interpreted or applied (disregarding any effect which relates to the
application to payments under this Agreement of a tax on the Lender's
overall net income); or
|
|
(b)
|
the
effect of complying with any regulation (including any which relates to
capital adequacy or liquidity controls or which affects the manner in
which the Notifying Lender allocates capital resources to its obligations
under this Agreement) which is introduced, or altered, or the
interpretation or application of which is altered, after the date of this
Agreement,
|
|
|
is
that the Notifying Lender (or a parent company of it) has incurred or will
incur an “increased cost”, that is to
say,:
|
|
|
(i)
|
an
additional or increased cost incurred as a result of, or in connection
with, the Notifying Lender having entered into, or being a party to, this
Agreement or a Transfer Certificate, of funding or maintaining its
Commitment or Contribution or performing its obligations under this
Agreement, or of having outstanding all or any part of its Contribution or
other unpaid sums; or
|
|
|
(ii)
|
a
reduction in the amount of any payment to the Notifying Lender under this
Agreement or in the effective return which such a payment represents to
the Notifying Lender or on its
capital;
|
|
|
(iii)
|
an
additional or increased cost of funding all or maintaining all or any of
the advances comprised in a class of advances formed by or including the
Notifying Lender's Contribution or (as the case may require) the
proportion of that cost attributable to the Contribution;
or
|
|
|
(iv)
|
a
liability to make a payment, or a return foregone, which is calculated by
reference to any amounts received or receivable by the Notifying Lender
under this Agreement;
|
but not
an item attributable to a change in the rate of tax on the overall net income of
the Notifying Lender (or a parent company of it) or an item covered by the
indemnity for tax in Clause 21.1 or by Clause 22.
For the
purposes of this Clause 24.1 the Notifying Lender may in good faith allocate or
spread costs and/or losses among its assets and liabilities (or any class
thereof) on such basis as it considers appropriate.
|
24.2
|
Notification to Borrower of
claim for increased costs. The Agent shall promptly
notify the Borrower and the Security Parties of the notice which the Agent
received from the Notifying Lender under Clause
24.1.
|
|
24.3
|
Payment of increased
costs. The Borrower shall pay to the Agent, on the
Agent's demand, for the account of the Notifying Lender the amounts which
the Agent from time to time notifies the Borrower that the Notifying
Xxxxxx has specified to be necessary to compensate the Notifying Lender
for the increased cost.
|
48
|
24.4
|
Notice of
prepayment. If the Borrower is not willing to continue
to compensate the Notifying Lender for the increased cost under Clause
24.3, the Borrower may give the Agent not less than 14 days' notice of its
intention to prepay the Notifying Xxxxxx's Contribution at the end of an
Interest Period.
|
|
24.5
|
Prepayment; termination of
Commitment. A notice under Clause 24.4 shall be
irrevocable; the Agent shall promptly notify the Notifying Lender of the
Borrower’s notice of intended prepayment;
and:
|
|
(a)
|
on
the date on which the Agent serves that notice, the Commitment of the
Notifying Lender shall be cancelled;
and
|
|
(b)
|
on
the date specified in its notice of intended prepayment, the Borrower
shall prepay (without premium or penalty) the Notifying Lender's
Contribution, together with accrued interest thereon at the applicable
rate plus the Margin.
|
|
24.6
|
Application of
prepayment. Clause 8 shall apply in relation to the
prepayment.
|
|
25
|
SET-OFF
|
|
25.1
|
Application of credit
balances. Each Creditor Party may without prior
notice:
|
|
(a)
|
apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of the Borrower at any office in any
country of that Creditor Party in or towards satisfaction of any sum then
due from the Borrower to that Creditor Party 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 the
Borrower;
|
|
|
(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 the Creditor Party concerned considers
appropriate.
|
|
25.2
|
Existing rights
unaffected. No Creditor Party shall be obliged to
exercise any of its rights under Clause 25.1; 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 a Creditor Party
is entitled (whether under the general law or any
document).
|
|
25.3
|
Sums deemed due to a
Lender. For the purposes of this Clause 25, a sum
payable by the Borrower to the Agent or the Security Trustee for
distribution to, or for the account of, a Lender shall be treated as a sum
due to that Lender; and each Lender's proportion of a sum so payable for
distribution to, or for the account of, the Lenders shall be treated as a
sum due to such Lender.
|
|
25.4
|
No Security
Interest. This Clause 25 gives the Lenders a contractual
right of set off only, and does not create any equitable charge or other
Security Interest over any credit balance of the
Borrower.
|
|
26
|
TRANSFERS
AND CHANGES IN LENDING OFFICES
|
|
26.1
|
Transfer by
Xxxxxxxx. The Borrower may not, without the consent of
the Agent, given on the instructions of all the
Lenders:
|
|
(a)
|
transfer
any of its rights or obligations under any Finance Document;
or
|
49
|
(b)
|
enter
into any merger, de-merger or other reorganisation, or carry out any other
act, as a result of which any of its rights or liabilities would vest in,
or pass to, another person.
|
|
26.2
|
Transfer by a
Lender. Subject to Clause 26.4, a Lender (the “Transferor Lender”) may
at any time transfer:
|
|
(a)
|
its
rights in respect of all or part of its Contribution;
or
|
|
(b)
|
its
obligations in respect of all or part of its Commitment;
or
|
|
(c)
|
a
combination of (a) and (b);
|
to be (in
the case of its rights) transferred to, or (in the case of its obligations)
assumed by, another bank or financial institution (a “Transferee Lender”) by
delivering to the Agent a completed certificate in the form set out in Schedule
5 with any modifications approved or required by the Agent (a “Transfer Certificate”)
executed by the Transferor Lender and the Transferee Lender.
However
any rights and obligations of the Transferor Lender in its capacity as Agent or
Security Trustee will have to be dealt with separately in accordance with the
Agency and Trust Agreement.
|
26.3
|
Transfer Certificate, delivery
and notification. As soon as reasonably practicable
after a Transfer Certificate is delivered to the Agent, it shall (unless
it has reason to believe that the Transfer Certificate may be
defective):
|
|
(a)
|
sign
the Transfer Certificate on behalf of itself, the Borrower, the Security
Parties, the Security Trustee, each of the other Lenders and each of the
Swap Banks;
|
|
(b)
|
on
behalf of the Transferee Lender, send to the Borrower and each Security
Party letters or faxes notifying them of the Transfer Certificate and
attaching a copy of it;
|
|
(c)
|
send
to the Transferee Lender copies of the letters or faxes sent under
paragraph (b) above.
|
|
26.4
|
Effective Date of Transfer
Certificate. A Transfer Certificate becomes effective on
the date, if any, specified in the Transfer Certificate as its effective
date Provided that
it is signed by the Agent under Clause 26.3 on or before that
date.
|
|
26.5
|
No transfer without Transfer
Certificate. No assignment or transfer of any right or
obligation of a Lender under any Finance Document is binding on, or
effective in relation to, the Borrower, any Security Party, the Agent or
the Security Trustee unless it is effected, evidenced or perfected by a
Transfer Certificate.
|
|
26.6
|
Lender re-organisation; waiver
of Transfer Certificate. However, if a Lender enters
into any merger, de-merger or other reorganisation as a result of which
all its rights or obligations vest in another person (the “successor”), the Agent
may, if it sees fit, by notice to the successor and the Borrower and the
Security Trustee waive the need for the execution and delivery of a
Transfer Certificate; and, upon service of the Agent's notice, the
successor shall become a Lender with the same Commitment and Contribution
as were held by the predecessor
Lender.
|
|
26.7
|
Effect of Transfer
Certificate. A Transfer Certificate takes effect in
accordance with English law as
follows:
|
|
(a)
|
to
the extent specified in the Transfer Certificate, all rights and interests
(present, future or contingent) which the Transferor Lender has under or
by virtue of the Finance Documents are assigned to the Transferee Lender
absolutely, free of any defects in the Transferor Xxxxxx's title and of
any rights or equities which the Borrower or any Security Party had
against the Transferor Lender;
|
50
|
(b)
|
the
Transferor Lender's Commitment is discharged to the extent specified in
the Transfer Certificate;
|
|
(c)
|
the
Transferee Lender becomes a Lender with the Contribution previously held
by the Transferor Lender and a Commitment of an amount specified in the
Transfer Certificate;
|
|
(d)
|
the
Transferee Lender becomes bound by all the provisions of the Finance
Documents which are applicable to the Lenders generally, including those
about pro-rata sharing and the exclusion of liability on the part of, and
the indemnification of, the Agent and the Security Trustee and, to the
extent that the Transferee Lender becomes bound by those provisions (other
than those relating to exclusion of liability), the Transferor Lender
ceases to be bound by them;
|
|
(e)
|
any
part of the Loan which the Transferee Lender advances after the Transfer
Certificate's effective date ranks in point of priority and security in
the same way as it would have ranked had it been advanced by the
transferor, assuming that any defects in the transferor's title and any
rights or equities of the Borrower or any Security Party against the
Transferor Lender had not existed;
|
|
(f)
|
the
Transferee Lender becomes entitled to all the rights under the Finance
Documents which are applicable to the Lenders generally, including but not
limited to those relating to the Majority Lenders and those under Clause
5.7 and Clause 20, and to the extent that the Transferee Lender becomes
entitled to such rights, the Transferor Lender ceases to be entitled to
them; and
|
|
(g)
|
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, the Transferee Lender shall be
entitled to recover damages by reference to the loss incurred by it as a
result of the breach or misrepresentation, irrespective of whether the
original Lender would have incurred a loss of that kind or
amount.
|
The
rights and equities of the Borrower or any Security Party referred to above
include, but are not limited to, any right of set off and any other kind of
cross-claim.
|
26.8
|
Maintenance of register of
Lenders. During the Security Period the Agent shall
maintain a register in which it shall record the name, Commitment,
Contribution and administrative details (including the lending office)
from time to time of each Lender holding a Transfer Certificate and the
effective date (in accordance with Clause 26.4) of the Transfer
Certificate; and the Agent shall make the register available for
inspection by any Lender, the Security Trustee and the Borrower during
normal banking hours, subject to receiving at least 3 Business Days prior
notice.
|
|
26.9
|
Reliance on register of
Lenders. The entries on that register shall, in the
absence of manifest error, be conclusive in determining the identities of
the Lenders and the amounts of their Commitments and Contributions and the
effective dates of Transfer Certificates and may be relied upon by the
Agent and the other parties to the Finance Documents for all purposes
relating to the Finance Documents.
|
|
26.10
|
Authorisation of Agent to sign
Transfer Certificates. The Borrower, the Security
Trustee, each Lender and each Swap Bank irrevocably authorise the Agent to
sign Transfer Certificates on its
behalf.
|
|
26.11
|
Registration
fee. In respect of any Transfer Certificate, the Agent
shall be entitled to recover a registration fee of $1,500 from the
Transferor Lender or (at the Agent's option) the Transferee
Lender.
|
|
26.12
|
Sub-participation; subrogation
assignment. A Lender may sub-participate all or any part
of its rights and/or obligations under or in connection with the Finance
Documents without the consent of, or any notice to, the Borrower, any
Security Party, the Agent or the Security Trustee; and the Lenders may
assign, in any manner and terms agreed by the Majority Lenders, the Agent
and the Security Trustee, all or any part of those rights to an insurer or
surety who has become subrogated to
them.
|
51
|
26.13
|
Disclosure of
information. A Lender may disclose to a potential
Transferee Lender or sub-participant any information which the Lender has
received in relation to the Borrower, any Security Party or their affairs
under or in connection with any Finance Document, unless the information
is clearly of a confidential
nature.
|
|
26.14
|
Change of lending
office. A Lender may change its lending office by giving
notice to the Agent and the change shall become effective on the later
of:
|
|
(a)
|
the
date on which the Agent receives the notice;
and
|
|
(b)
|
the
date, if any, specified in the notice as the date on which the change will
come into effect.
|
|
26.15
|
Notification. On
receiving such a notice, the Agent shall notify the Borrower and the
Security Trustee; and, until the Agent receives such a notice, it shall be
entitled to assume that a Lender is acting through the lending office of
which the Agent last had notice.
|
|
27
|
VARIATIONS
AND WAIVERS
|
|
27.1
|
Variations, waivers etc. by
Xxxxxxxx Xxxxxxx. Subject to Clause 27.2, a document
shall be effective to vary, waive, suspend or limit any provision of a
Finance Document, or any Creditor 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 Borrower, by the Agent on behalf of
the Majority Lenders, by the Agent and the Security Trustee in their own
rights, and, if the document relates to a Finance Document to which a
Security Party is party, by that Security
Party.
|
|
27.2
|
Variations, waivers etc.
requiring agreement of all Lenders. However, as regards
the following, Clause 27.1 applies as if the words “by the Agent on behalf
of the Majority Lenders” were replaced by the words “by or on behalf of
every Lender”:
|
|
(a)
|
a
change in the Margin or in the definition of
LIBOR;
|
|
(b)
|
a
change to the date for, the amount of, any payment of principal, interest,
fees, or other sum payable under this
Agreement;
|
|
(c)
|
a
change to any Xxxxxx's Commitment;
|
|
(d)
|
an
extension of Availability Period;
|
|
(e)
|
a
change to the definition of “Majority Lenders” or “Finance
Documents”;
|
|
(f)
|
a
change to the preamble or to Clause 2, 3, 4, 5.1, 17, 19 or
29;
|
|
(g)
|
a
change to this Clause 27;
|
|
(h)
|
any
release of, or material variation to, a Security Interest, guarantee,
indemnity or subordination arrangement set out in a Finance Document;
and
|
|
(i)
|
any
other change or matter as regards which this Agreement or another Finance
Document expressly provides that each Lender's consent is
required.
|
|
27.3
|
Exclusion of other or implied
variations. Except for a document which satisfies the
requirements of Clauses 27.1 and 27.2, no document, and no act, course of
conduct, failure or neglect to act, delay or acquiescence on the part of
the Creditor Parties or any of them (or any person acting on behalf of any
of them) shall result in the Creditor Parties or any of them (or any
person acting on behalf of any of them) being taken to have varied,
waived, suspended or limited, or being precluded (permanently or
temporarily) from enforcing, relying on or
exercising:
|
52
|
(a)
|
a
provision of this Agreement or another Finance Document;
or
|
|
(b)
|
an
Event of Default; or
|
|
(c)
|
a
breach by the Borrower or a Security Party 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.
|
28
|
NOTICES
|
|
28.1
|
General. Unless
otherwise specifically provided, any notice under or in connection with
any Finance Document shall be given by letter or fax; and references in
the Finance Documents to written notices, notices in writing and notices
signed by particular persons shall be construed
accordingly.
|
|
28.2
|
Addresses for
communications. A notice shall be
sent:
|
|
(a)
|
to
the Borrower:
|
00,
Xxxxxxxxx Xxxxxx
XX000
00
Xxxxx,
Xxxxxx
Xxxxxx
Fax
No: x00 000 000 0000;
|
|
(b)
|
to
a Lender/Swap Bank:
|
At
the address below its name in Schedule 1 or
Schedule
2 or (as the case may require) in the relevant Transfer
Certificate;
|
|
(c)
|
to
the Arranger, Agent and Security Trustee:
|
Head
Office A3
Lower
Baggot Street
Dublin
2
Ireland
Fax
No: x000 0 000 0000
|
or to
such other address as the relevant party may notify the Agent or, if the
relevant party is the Agent or the Security Trustee, the Borrower, the Lenders,
the Swap Banks and the Security Parties.
|
28.3
|
Effective date of
notices. Subject to Clauses 28.4 and
28.5:
|
|
(a)
|
a
notice which is delivered personally or posted shall be deemed to be
served, and shall take effect, at the time when it is
delivered;
|
|
(b)
|
a
notice which is sent by fax shall be deemed to be served, and shall take
effect, 2 hours after its transmission is
completed.
|
|
28.4
|
Service outside business
hours. However, if under Clause 28.3 a notice would be
deemed to be served:
|
|
(a)
|
on
a day which is not a business day in the place of receipt;
or
|
53
|
(b)
|
on
such a business day, but after 5 p.m. local
time;
|
|
|
the
notice shall (subject to Clause 28.5) be deemed to be served, and shall
take effect, at 9 a.m. on the next day which is such a business
day.
|
|
28.5
|
Illegible
notices. Clauses 28.3 and 28.4 do not apply if the
recipient of a notice notifies the sender within one 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.
|
|
28.6
|
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:
|
|
(a)
|
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
|
|
(b)
|
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.
|
|
28.7
|
English
language. Any notice under or in connection with a
Finance Document shall be in
English.
|
|
28.8
|
Meaning of
“notice”. In this Clause “notice” includes any demand,
consent, authorisation, approval, instruction, waiver or other
communication.
|
|
29
|
SUPPLEMENTAL
|
|
29.1
|
Rights cumulative,
non-exclusive. The rights and remedies which the Finance
Documents give to each Creditor Party
are:
|
|
(a)
|
cumulative;
|
|
(b)
|
may
be exercised as often as appears expedient;
and
|
|
(c)
|
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.
|
|
29.2
|
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.
|
|
29.3
|
Third party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
29.4
|
Counterparts. A
Finance Document may be executed in any number of
counterparts.
|
|
30
|
LAW
AND JURISDICTION
|
|
30.1
|
English
law. This Agreement shall be governed by, and construed
in accordance with, English law.
|
54
|
30.2
|
Exclusive English
jurisdiction. Subject to Clause 30.3, the courts of
England shall have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this
Agreement.
|
|
30.3
|
Choice of forum for the
exclusive benefit of the Creditor Parties. Clause 30.2
is for the exclusive benefit of the Creditor Parties, each of which
reserves the right:
|
|
(a)
|
to
commence proceedings in relation to any matter which arises out of or in
connection with this Agreement in the courts of any country other than
England and which have or claim jurisdiction to that matter;
and
|
|
(b)
|
to
commence such proceedings in the courts of any such country or countries
concurrently with or in addition to proceedings in England or without
commencing proceedings in England.
|
|
|
The
Borrower shall not commence any proceedings in any country other than
England in relation to a matter which arises out of or in connection with
this Agreement.
|
|
30.4
|
Process
agent. The Borrower irrevocably appoints HTD Services
Limited at their office for the time being, presently at Irongate House,
Duke’s Place, London EC3A 7HX, England, to act as its agent to receive and
accept on its behalf any process or other document relating to any
proceedings in the English courts which are connected with this
Agreement.
|
|
30.5
|
Creditor Party rights
unaffected. Nothing in this Clause 30 shall exclude or
limit any right which any Creditor 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.
|
|
30.6
|
Meaning of
“proceedings”. In this Clause 30, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
|
AS WITNESS the hands of the
duly authorised officers or attorneys of the parties the day and year first
before written.
55
SCHEDULE
1
LENDERS
AND COMMITMENTS
|
Lender
|
Lending
Office
|
Commitment
|
|
The
Governor and Company of the Bank
of
Ireland
|
Head
Office A3
Lower
Baggot Street
Dublin
2
Ireland
|
$30,000,000
|
56
SCHEDULE
2
SWAP
BANKS
|
Swap
Bank
|
Booking
Office
|
|
The
Governor and Company of the Bank of Ireland
|
Colvill
House
Talbot
Street
Dublin
1
Ireland
|
57
SCHEDULE
3
DRAWDOWN
NOTICE
To: The
Governor and Company of the Bank of Ireland
Head Office A3
Lower Baggot Street
Dublin 2
Ireland
Attention:
[Loans Administration]
2008
DRAWDOWN
NOTICE
|
1.
|
We
refer to the loan agreement (the “Loan Agreement”)
dated 2008
and made between ourselves, as Borrower, the Lenders and Swap Banks
referred to therein, and yourselves as Arranger, Agent and as Security
Trustee in connection with a revolving credit facility of up to
US$30,000,000. Terms defined in the Loan Agreement have their defined
meanings when used in this Drawdown
Notice.
|
|
2.
|
We
request to borrow an Advance as
follows:
|
|
(a)
|
Amount
of Advance:
US$[ ];
|
|
(b)
|
Drawdown
Date: [ ];
|
|
(c)
|
Duration
of the first Interest Period shall be
[ ]
months;
|
|
(d)
|
Payment
instructions : account of
[ ]
and numbered
[ ]
with
[ ]
of
[ ].
|
|
3.
|
We
represent and warrant that:
|
|
(a)
|
the
representations and warranties in Clause 10 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 the prior consent of the Majority
Lenders.
|
___________________________________________
Attorney-in-Fact
for and
on behalf of
58
SCHEDULE
4
CONDITION
PRECEDENT DOCUMENTS
The
following are the documents referred to in Clause 9.1(a).
|
1.
|
A
duly executed original of each of the Finance Documents (together with all
notices of assignment and acknowledgements required
thereunder).
|
|
2.
|
Copies
of the certificate of incorporation and constitutional documents of the
Borrower and the Corporate
Guarantor.
|
|
3.
|
Copies
of resolutions of the shareholders and directors of the Borrower and of
the Corporate Guarantor, authorising the execution of each of the Finance
Documents referred to at 1 above to which the Borrower or the Corporate
Guarantor is a party and, in the case of the Borrower, authorising named
officers to give the Drawdown Notices and other notices under this
Agreement.
|
|
4.
|
The
original of any power of attorney under which any Finance Document
referred to at 1 above is executed on behalf of the Borrower or the
Corporate Guarantor.
|
|
5.
|
Copies
of all consents which the Borrower or any Security Party requires to enter
into, or make any payment under, any Finance
Document.
|
|
6.
|
Documentary
evidence that:
|
|
(a)
|
the
Ship is definitively and permanently registered in the name of the
Borrower under the Approved Flag;
|
|
(b)
|
the
Ship is in the absolute and unencumbered ownership of the Borrower save as
contemplated by the Finance
Documents;
|
|
(c)
|
the
Ship maintains the highest available class with Lloyds Register of Ships
(or equivalent), free of all overdue recommendations and conditions of
such classification society;
|
|
(d)
|
the
Mortgage in respect of the Ship has been duly registered against the Ship
as a valid first priority ship mortgage in accordance with the laws of the
Approved Flag State; and
|
|
(e)
|
the
Ship is insured in accordance with the provisions of this Agreement and
all requirements therein in respect of insurances have been complied
with.
|
|
7.
|
Documents
establishing that the Ship is managed by the Approved Manager on terms
acceptable to the Lenders, together
with:
|
|
(a)
|
the
Approved Manager’s Undertaking in respect of the
Ship;
|
|
(b)
|
copies
of the Document of Compliance and Safety Management Certificate and
ISSC;
|
|
(c)
|
copies
of such other ISM Code or ISPS Code documentation as the Agent may by
written notice to the Borrower have requested not later than 2 days before
the first Drawdown Date, certified as true and complete in all material
respects by the Corporate Guarantor and the Approved
Manager.
|
|
8.
|
Two
valuations of the Ship addressed to the Agent, prepared in accordance with
Clause 15 and which show the value of the Ship in an amount acceptable to
the Agent.
|
59
|
9.
|
A
favourable opinion from BankServe Insurance Consultants Limited on such
matters relating to the Insurances for the Ship as the Agent may
require.
|
|
10.
|
A
certificate in a form and substance satisfactory to the Lenders confirming
the legal and beneficial ownership of the shares in the Corporate
Guarantor, signed by the ultimate beneficial owners of the shares in the
Corporate Guarantor.
|
|
11.
|
All
documentation required by the Agent in respect of any Security Party, its
directors and shareholders pursuant to the Agent’s “Know Your Customer”
requirements, together with such other documents or evidence as the
Lenders may reasonably require with respect to relevant money laundering
requirements.
|
|
12.
|
Documentary
evidence that the agent for service of process named in Clause 30 has
accepted its appointment.
|
|
13.
|
Favourable
legal opinions from lawyers appointed by the Agent on such matters
concerning the laws of the Republic of the Xxxxxxxx Islands and such other
relevant jurisdictions as the Agent may
require.
|
|
14.
|
Evidence
that the sum of $500,000 is standing to the credit of the Operating
Account, by way of required minimum liquidity pursuant to the provisions
of Clause 12.5.
|
|
15.
|
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.
|
Every
copy document delivered under this Schedule shall be certified as a true and up
to date copy by a director or the secretary (or equivalent officer) of the
Borrower.
60
SCHEDULE
5
TRANSFER
CERTIFICATE
The
Transferor and the Transferee accept exclusive responsibility for ensuring that
this Certificate and the transaction to which it relates comply with all legal
and regulatory requirements applicable to them respectively.
|
To:
|
The
Governor and Company of the Bank of Ireland for itself and for and on
behalf of the Borrower, each Security Party, the Security Trustee, each
Lender and each Swap Bank, as defined in the Loan Agreement referred to
below.
|
|
1.
|
This
Certificate relates to a Loan Agreement (the “Loan Agreement”) dated
[ ]
2008 and made between (1) Paragon Shipping Inc. (the “Borrower”), (2) the
banks and financial institutions named therein as Lenders, (3) the banks
and financial institutions named therein as Swap Banks and (4) The
Governor and Company of the Bank of Ireland as Arranger, Agent
and Security Trustee, for a revolving credit facility of up to
US$30,000,000.
|
|
2.
|
In
this Certificate:
|
|
|
“the Relevant Parties”
means the Agent, the Borrower, each Security Party, the Security Trustee,
each Lender and each Swap Bank;
|
|
|
“the Transferor” means
[full name] of [lending office];
|
|
|
“the Transferee” means
[full name] of [lending office].
|
|
|
Terms
defined in the Loan Agreement shall, unless the contrary intention
appears, have the same meanings when used in this
Certificate.
|
|
3.
|
The
effective date of this Certificate is
[ ] Provided that this
Certificate shall not come into effect unless it is signed by the Agent on
or before that date.
|
|
4.
|
The
Transferor assigns to the Transferee absolutely all rights and interests
(present, future or contingent) which the Transferor has as Lender under
or by virtue of the Loan Agreement and every other Finance Document in
relation to [ ] per cent. of the Contribution
outstanding to the Transferor (or its predecessors in title) which is set
out below:
|
|
Contribution
|
Amount
transferred
|
|
|
5.
|
By
virtue of this Transfer Certificate and Clause 26 of the Loan Agreement,
the Transferor is discharged [entirely from its Commitment which amounts
to $[ ]] [from
[ ] per cent. of its Commitment, which percentage
represents $[ ]]
and the Transferee acquires a Commitment of
$[ ].
|
|
6.
|
The
Transferee undertakes with the Transferor and each of the Relevant Parties
that the Transferee will observe and perform all the obligations under the
Finance Documents which Clause 26 of the Loan Agreement provides will
become binding on it upon this Certificate taking
effect.
|
61
|
7.
|
The
Agent, at the request of the Transferee (which request is hereby made)
accepts, for the Agent itself and for and on behalf of every other
Relevant Party, this Certificate as a Transfer Certificate taking effect
in accordance with Clause 26 of the Loan
Agreement.
|
|
8.
|
The
Transferor:
|
|
(a)
|
warrants
to the Transferee and each Relevant
Party:
|
|
|
(i)
|
that
the Transferor has full capacity to enter into this transaction and has
taken all corporate action and obtained all consents which are in
connection with this transaction;
and
|
|
|
(ii)
|
that
this Certificate is valid and binding as regards the
Transferor;
|
|
(b)
|
warrants
to the Transferee that the Transferor is absolutely entitled, free of
encumbrances, to all the rights and interests covered by the assignment in
paragraph 4 above;
|
|
(c)
|
undertakes
with the Transferee that the Transferor will, at its own expense, execute
any documents which the Transferee reasonably requests for perfecting in
any relevant jurisdiction the Transferee's title under this Certificate or
for a similar purpose.
|
|
9.
|
The
Transferee:
|
|
(a)
|
confirms
that it has received a copy of the Loan Agreement and each other Finance
Document;
|
|
(b)
|
agrees
that it will have no rights of recourse on any ground against either the
Transferor, the Agent, the Security Trustee, any Lender or any Swap Bank
in the event that:
|
|
|
(i)
|
the
Finance Documents prove to be invalid or
ineffective,
|
|
|
(ii)
|
the
Borrower or any Security Party fails to observe or perform its
obligations, or to discharge its liabilities, under the Finance
Documents;
|
|
|
(iii)
|
it
proves impossible to realise any asset covered by a Security Interest
created by a Finance Document, or the proceeds of such assets are
insufficient to discharge the liabilities of the Borrower or Security
Party under the Finance Documents;
|
|
(c)
|
agrees
that it will have no rights of recourse on any ground against the Agent,
the Security Trustee, any Lender or any Swap Bank in the event that this
Certificate proves to be invalid or
ineffective;
|
|
(d)
|
warrants
to the Transferor and each Relevant Party (i) that it has full capacity to
enter into this transaction and has taken all corporate action and
obtained all official consents which it needs to take or obtain in
connection with this transaction; and (ii) that this Certificate is valid
and binding as regards the Transferee;
and
|
|
(e)
|
confirms
the accuracy of the administrative details set out below regarding the
Transferee.
|
|
10.
|
The
Transferor and the Transferee each undertake with the Agent and the
Security Trustee severally, on demand, fully to indemnify the Agent and/or
the Security Trustee in respect of any claim, proceeding, liability or
expense (including all legal expenses) which they or either of them may
incur in connection with this Certificate or any matter arising out of it,
except such as are shown to have been mainly and directly caused by the
gross and culpable negligence or dishonesty of the Agent's or the Security
Trustee's own officers or
employees.
|
62
|
11.
|
The
Transferee shall repay to the Transferor on demand so much of any sum paid
by the Transferor under paragraph 8 above as exceeds one-half of the
amount demanded by the Agent or the Security Trustee in respect of a
claim, proceeding, liability or expense which was not reasonably
foreseeable at the date of this Certificate; but nothing in this paragraph
shall affect the liability of each of the Transferor and the Transferee to
the Agent or the Security Trustee for the full amount demanded by
it.
|
|
[Name
of Transferor]
|
[Name
of Transferee]
|
| By: |
By:
|
| Date: | Date: |
Agent
Signed
for itself and for and on behalf of itself
as Agent
and for every other Relevant Party
The
Governor and Company of the Bank of Ireland
By:
Date:
63
Administrative
Details of Transferee
Name of
Transferee:
Lending
Office:
Contact
Person
(Loan
Administration Department):
Telephone:
Telex:
Fax:
Contact
Person
(Credit
Administration Department):
Telephone:
Telex:
Fax:
Account
for payments:
|
Note:
|
This
Transfer Certificate alone may not be sufficient to transfer a
proportionate share of the Transferor's interest in the security
constituted by the Finance Documents in the Transferor's or Transferee's
jurisdiction. It is the responsibility of each Lender to
ascertain whether any other documents are required for this
purpose.
|
64
SCHEDULE
6
FORM
OF COMPLIANCE CERTIFICATE
To: The
Governor and Company of the Bank of Ireland
Head Office A3
Lower Baggot Street
Dublin 2
Ireland
[l] 200[l]
Dear
Sirs,
We refer
to a loan agreement dated [l] 2008 (the “Loan Agreement”) made between
(amongst others) yourselves and ourselves in relation to a revolving credit
facility of up to $30,000,000.
Words and
expressions defined in the Loan Agreement shall have the same meaning when used
in this compliance certificate.
We
enclose with this certificate a copy of the [audited]/[unaudited] consolidated
accounts for the Group for the [Financial Year] [3-month period] ended [l]. The
accounts (i) have been prepared in accordance with all applicable laws and GAAP
consistently applied, (ii) give a true and fair view of the state of affairs of
the Group at the date of the accounts and of its profit for the period to which
the accounts relate and (iii) fully disclose or provide for all significant
liabilities of the Group.
We also
enclose copies of the valuations of all the Fleet Vessels which were used in
calculating the Market Value Adjusted Total Assets of the Group as at [l].
The
Borrower represents that no Event of Default or Potential Event of Default has
occurred as at the date of this certificate [except for the following matter or
event [set out all material
details of matter or event]]. In addition as of [l], the Borrower confirms
compliance with the financial covenants set out in Clause 12.7 of the Loan
Agreement for the 3 months ending as of the date to which the enclosed accounts
are prepared.
We now
certify that, as at [l]:
|
(a)
|
the
ratio of Total Liabilities to EBITDA is [l]:[l];
|
|
(b)
|
the
Market Value Adjusted Net Worth of the Group is $[l];
|
|
(c)
|
Liquid
Assets available to the Group are $[l] in aggregate of
which an aggregate amount of $[l] is standing to
the credit of the Operating Account;
and
|
|
(d)
|
the
Leverage Ratio is [l]:[l].
|
This
certificate shall be governed by, and construed in accordance with, English
law.
______________________________
[l]
Chief
Financial Officer of
Paragon
Shipping Inc
65
EXECUTION
PAGES
|
BORROWER
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
)
|
|
|
in
the presence of:
|
)
|
|
LENDERS
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
THE
GOVERNOR AND COMPANY
|
)
|
|
OF
THE BANK OF IRELAND
|
)
|
|
in
the presence of:
|
)
|
|
SWAP
BANKS
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
THE
GOVERNOR AND COMPANY
|
)
|
|
OF
THE BANK OF IRELAND
|
)
|
|
in
the presence of:
|
)
|
|
ARRANGER
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
THE
GOVERNOR AND COMPANY
|
)
|
|
OF
THE BANK OF IRELAND
|
)
|
|
in
the presence of:
|
)
|
|
AGENT
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
THE
GOVERNOR AND COMPANY
|
)
|
|
OF
THE BANK OF IRELAND
|
)
|
|
in
the presence of:
|
)
|
|
SECURITY
TRUSTEE
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
THE
GOVERNOR AND COMPANY
|
)
|
|
OF
THE BANK OF IRELAND
|
)
|
|
in
the presence of:
|
)
|
SK 25744
0001 984081
66
