EXHIBIT 4.19
Dated 30 April 2001
ANANGEL-AMERICAN SHIPHOLDINGS LIMITED
- and -
THE ROYAL BANK OF SCOTLAND PLC
---------------------------
FACILITY AGREEMENT
in respect of an overdraft facility
of up to US$50,000,000
---------------------------
THIS AGREEMENT is made the 30th day of April 2001
BETWEEN
(1) ANANGEL-AMERICAN SHIPHOLDINGS LIMITED as Borrower; and
(2) THE ROYAL BANK OF SCOTLAND plc as Lender.
BY WHICH IT IS AGREED
1. PURPOSE AND DEFINITIONS
1.1 This Agreement sets out the terms and conditions upon which The Royal Bank
of Scotland plc will make available to Anangel-American Shipholdings
Limited of the Cayman Islands an overdraft facility of up to US$50,000,000
to provide the said company with working capital.
1.2 In this Agreement the following words and expressions specified below
shall, except where the context otherwise requires, have the following
meanings:
"AVAILABILITY PERIOD" means the period commencing from the date of this
Agreement and expiring on 31 May 2001 (or such later date as the Lender
may, in its discretion, agree following a request in writing from the
Borrower);
"BORROWER" means Anangel-American Shipholdings Limited, a company
organised and existing under the laws of the Cayman Islands and having its
registered office at The Huntlaw Building, PO Box 1350, Xxxxxx Town, the
Cayman Islands;
"BUSINESS DAYS" means days on which banks and foreign exchange markets are
open for business in London and Piraeus and, additionally, if a payment is
required to be made hereunder, on which banks and foreign exchange markets
are open for business in New York City;
"DOLLARS" (and the sign "$") means the legal currency, at any relevant
time hereunder, of the United States of America;
"FRONT SHIPHOLDING" means Front Shipholding Inc. of Liberia;
"INTEREST RATE" means, subject to the provisions of Clause 10, the annual
rate of interest which is conclusively certified by the Lender to the
Borrower to be the aggregate of (a) the Margin, (b) the Mandatory Cost
Rate and (c) the rate (rounded upwards to the nearest one sixteenth of one
per centum) quoted by the Lender as the London Interbank Offered Rate on
Wednesday each week for seven-day Dollar deposits from time to time or at
any time;
"LENDER" means The Royal Bank of Scotland plc a company incorporated in
Scotland and having its registered office at 00 Xx. Xxxxxx Xxxxxx,
Xxxxxxxxx, XX0 0XX, Xxxxxxxx and acting for the time being through its
branch at 00 Xxxx Xxxxxxx, Xxxxxxx 000 00, Xxxxxx (Telex Xx. 000000
Xxxxxxxxxx XXX XX, Fax No. (000) 000 0000), or any branch through which
the Lender may be acting from time to time pursuant to Clause 8.2(b) and,
where the context so admits, its successors and any other bank or
financial institution to which the Lender may assign some or all of its
rights or obligations under this Agreement pursuant to Clause 8.2(a);
"LONGVIEW" means Longview Shipholding Inc. of Liberia;
"MANDATORY COST RATE" means the percentage rate, which represents the cost
to the Lender, relative to the Overdraft Facility, of compliance with the
requirements of the Bank of England, the Financial Services Authority or
any other regulatory authority, as determined by the Lender in accordance
with the formula detailed in the Schedule thereto;
"MARGIN" means One per centum (1%) per annum or (in the case of any amount
accrued due for payment but unpaid hereunder during the period of such
non-payment) Two per centum (2%) per annum;
"MONTH" means a period beginning in one calendar month and ending in the
next calendar month on the day numerically corresponding to the day of the
calendar month on which it started provided that (i) if the period started
on the last Business Day in a calendar month or if there is no such
numerically corresponding day, it shall end on the last Business Day in
such next calendar month and (ii) if such numerically corresponding day is
not a Business Day, the period shall end on the next following Business
Day in the same calendar month but if there is no such Business Day it
shall end on the preceding Business Day, and "MONTHS" and "MONTHLY" shall
be construed accordingly;
"NEGATIVE PLEDGE" means the negative pledge in respect of each Vessel
executed or to be executed by Front Shipholding and Longview in favour of
the Lender in such form as the Lender shall require;
"OVERDRAFT ACCOUNT" means the overdraft account opened or to be opened by,
and in the name of, the Borrower with the Lender in Piraeus and designated
"Anangel-American Shipholdings Limited-Overdraft Account";
"OVERDRAFT BALANCE" means, at any relevant time hereunder, the amount of
the balance standing to the debit of the Overdraft Account at such time;
"OVERDRAFT FACILITY" means the overdraft facility of up to (but not
exceeding) Fifty Million Dollars ($50,000,000), made or to be made
available by the Lender to the Borrower by way of debiting the Overdraft
Account subject to and upon the terms and conditions of this Agreement;
"PERSON" means any person, firm, company, corporation, unincorporated
body of persons, state or government or any agency thereof;
"RECEIVING BANK" means State Street Bank International of 00 Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000, U.S.A. or such other bank or banks
as may be notified by the Lender to the Borrower;
"SECURITY PERIOD" means the period commencing on the date hereof and
terminating on the date upon which all moneys payable or to become payable
to the Lender at any time and from time to time pursuant to the terms
hereof and pursuant to the Security Documents shall have been paid in
full;
"TAXES" means any present or future taxes, levies, duties, charges, fees,
deductions or withholdings of any nature now or hereafter imposed, levied,
collected, withheld or assessed by any country or any political
sub-division or taxing authority thereof and "TAX" and "TAXATION" shall be
construed accordingly; and
"VESSELS" means, together, the following Greek flag 2000-built 170,000 dwt
bulk carriers:
(a) "ANANGEL MILLENIUM" owned, and registered in the ownership of,
Longview; and
(b) "ANANGEL CENTURY" owned, and registered in the ownership of, Front
Shipholding.
1.3 Clause headings are inserted for convenience of reference only and shall
be ignored in the interpretation of this Agreement. References to Clauses
are to be construed as references to clauses of this Agreement. Words
importing the singular number only shall include the plural and vice
versa. References to any document are to be construed as references to
such document as from time to time amended.
2. REPRESENTATIONS AND WARRANTIES
2.1 The Borrower hereby represents and warrants to the Lender that:
(a) the Borrower is duly formed and is validly existing and in good-standing
under the laws of the Cayman Islands and the Borrower has full power to
carry on its business as it is now being conducted and has complied with
all statutory and other requirements relative to such business and has no
place of business in the United Kingdom;
(b) the Borrower has full power to enter into and perform its obligations
under this Agreement and any necessary consents and authorities for the
Borrower to enter into, and perform its obligations under, this Agreement
and for the Borrower to borrow, repay, re-borrow and pay interest on the
Overdraft Facility, have been obtained and, as of the date of this
Agreement, no further consents or authorities are necessary for the
repayment of or payment of interest on the Overdraft Facility by the
Borrower or for the performance by the Borrower of its obligations
pursuant to the aforesaid documents; (c) this Agreement constitutes the
legal, valid and binding obligations of the Borrower enforceable in
accordance with their terms subject to any applicable bankruptcy,
insolvency re-organisation, moratorium or other laws relating to the
enforcement of creditors' rights;
(d) the execution and delivery by the Borrower of, and the performance by the
Borrower of the provisions of, this Agreement do not, and will not during
the Security Period, contravene any applicable law or regulation existing
at the date of this Agreement or any contractual restriction binding on
any party thereto or any of their constitutional documents;
(e) no action, suit or proceeding is, to the Borrower's knowledge, pending or
threatened against the Borrower before any court, board of arbitration or
administrative agency which could or might result in any material adverse
change in the business or condition (financial or otherwise) of the
Borrower;
(f) the Borrower is not in default under any agreement by which it is bound,
and has no financial commitment or obligation (including obligations under
guarantees) whether actual, contingent, present and or future other than
as disclosed to the Lender;
(g) all financial and other information relating to the business and financial
affairs of the Borrower furnished to the Lender in connection with the
negotiation of the terms of this Agreement was and remains true and
correct in all respects and to the best of the Borrower's knowledge and
belief there are no further facts or considerations the omission of which
would render any such information misleading; and
(h) the Borrower is the legal and beneficial owner of all of the shares of and
in Longview and Front Shipholding.
2.2 The representations and warranties of the Borrower in Clause 2.1 shall
survive the execution of this Agreement and the making available of the
Overdraft Facility and shall be deemed to be repeated by the Borrower at
the date of each further drawing with respect to the circumstances
existing at each such time.
3. OVERDRAFT FACILITY
3.1 The Lender, relying (inter alia) upon each of the representations and
warranties set out in Clause 2.1, hereby agrees, subject to and upon the
terms and conditions of this Agreement and, in particular, the fulfilment
of the conditions precedent set out in Clause 4.1, to make available to
the Borrower an overdraft facility in a maximum amount of Fifty million
Dollars ($50,000,000) by way of debit of the Overdraft Account.
3.2 Subject to the terms of this Agreement, the Borrower shall be entitled to
make withdrawals during the Availability Period from the Overdraft Account
provided always that:
(a) at no time shall the Overdraft Balance exceed $50,000,000; and (b) the
Borrower shall only be permitted to make withdrawals from the Overdraft
Account for working capital purposes, including payment of dividends to
its shareholders of up to $3.00 per share.
3.3 The Borrower shall pay interest on the Overdraft Balance at the prevailing
Interest Rate from time to time. Such interest shall be payable monthly in
arrears commencing with a first such payment one month after the date of
the first withdrawal from the Overdraft Account and the Lender shall, on
each date for the payment of such interest in respect of the Overdraft
Balance debit the Overdraft Account with the amount of such interest then
accrued and unpaid provided always that the Lender shall not be obliged to
debit the Overdraft Account as aforesaid with any such amount of interest
in respect of the Overdraft Balance if, and to the extent that, such debit
will result in the Overdraft Balance exceeding $50,000,000 (or such
reduced amounts in accordance with the terms of Clause 3.2). No interest
shall accrue and be payable by the Borrower in respect of any period
during which the Overdraft Account is in credit.
3.4 The Borrower shall repay to the Lender the full amount of the Overdraft
Balance, all interest accrued thereon and all other sums owing by the
Borrower to the Lender hereunder upon the earlier of:
(a) 31 May 2001 (or, if such date is not a Business Day, the immediately
preceding Business Day); and (b) first demand made by the Lender,
whereafter the Borrower's right to make withdrawals from the Overdraft
Account under this Agreement shall in all respects cease.
3.5 The Lender shall be entitled (but not bound) to debit any amount owing to
the Lender under this Agreement or any of the Security Documents to the
Overdraft Account.
3.6 The Borrower shall, throughout the Security Period, maintain the Overdraft
Account with the Lender in Piraeus and shall complete such mandates and
other documents relating to the opening and maintenance of the Overdraft
Account as the Lender shall reasonably require.
4. CONDITIONS PRECEDENT
4.1 The obligation of the Lender hereunder to make a first advance available
to the Borrower in respect of the Overdraft Facility shall be expressly
subject to the condition that the Lender shall have received the following
documents or evidence in form and substance satisfactory to the Lender and
its legal advisers:
(a)
(i) a Certificate of Incumbency executed by the Secretary or other
appropriate officer of the Borrower, specifying the names of the
directors and officers of the Borrower and having annexed thereto
copies, certified as true and complete by the secretary or a
director of the Borrower, of its constitutional documents and of the
resolutions passed at a meeting of its Board of Directors evidencing
approval of this Agreement and authorising its appropriate officer
or officers or other representatives to seal or otherwise execute
the same on its behalf; and
(ii) the original of any power of attorney issued by the Borrower
pursuant to such resolutions; and
(b) certified copies of all documents (with a certified translation if an
original is not in English) evidencing any other necessary action
approvals or consents with respect to this Agreement (including, but
without limitation, all necessary governmental and other official
approvals and consents in such pertinent jurisdictions as the Lender deems
appropriate); and
(c) the Negative Pledges duly executed by Front Shipholding and Longview
together with evidence that there is no lien, charge or encumbrance of any
kind whatsoever on either Vessel or her earnings, insurances or
requisition compensation; and
(d) the fee due under Clause 9.1; and
(e) valuations from an independent broker appointed by the Lender, in form and
substance satisfactory to the Lender, in respect of the Vessels showing an
aggregate value of no less than $71,500,000; and
(f) such legal opinions on such matters of foreign law as the Lender shall
require; (g) evidence that the persons named in Clause 12.2 have consented
to their appointment as agents for service upon the terms set out in such
clause.
5. PAYMENTS; TAXATION
5.1 Notwithstanding anything to the contrary contained in this Agreement, all
payments by the Borrower hereunder whether in respect of principal,
interest or otherwise, shall be made without set-off or counterclaim and
free and clear of any Taxes and without any deduction or withholding
whatsoever, as follows:
(a) in Dollars, in funds which are for same day settlement in the New York
Clearing House Interbank Payments System or in such other Dollar funds as
shall for the time being be customary for the same day settlement of
transactions of this nature, not later than 10:00 a.m. (local time) on the
Business Day (in New York City) on which the relevant payment is due under
the terms of this Agreement; and
(b) to the account of the Lender with the Receiving Bank. 5.2 The Borrower
agrees that it will pay to and/or indemnify the Lender for such additional
amounts as may be necessary in order that the net payments of principal
of, and interest on, the Overdraft Balance and each part thereof and all
other payments under this Agreement after deduction or withholding for, or
on account of, every present or future Taxes imposed by any competent
authority in any relevant jurisdiction shall be no less than such payments
would have been had there been no such Taxes. The Borrower shall promptly
deliver to the Lender duly authenticated official receipts, certificates
or other proof of all the relevant Taxation and other authorities
involved, evidencing the amounts (if any) paid or payable in respect of
any deduction
5.3 All interest and other payments hereunder of an annual nature shall accrue
from day to day and be calculated on the actual number of days elapsed and
on the basis of a 360 day year.
6. COVENANTS
6.1 The Borrower hereby covenants and undertakes with the Lender that,
throughout the Security Period:
(a) the Borrower will duly perform and observe the terms of this Agreement;
(b) the Borrower will promptly inform the Lender of any occurrence of which
the Borrower becomes aware which, in its reasonable opinion, might
adversely affect its ability to perform its obligations under this
Agreement;
(c) the Borrower will promptly inform the Lender as soon as the Borrower
becomes aware of the same, details of any litigation, arbitration, or
proceeding which, if it had been pending, current or threatened at the
date of this Agreement, would have rendered the representations contained
in Clause 2.1(e) incorrect;
(d) it will deliver to the Lender promptly, such other information relating to
the business, undertaking, assets, liabilities, revenues, financial
condition or affairs of the Borrower as the Lender from time to time may
require including (without limitation) in relation to the Vessels and
their employment; and
(e) it will, if the Overdraft is not repaid on or prior to 31 May 2001, on the
Lender's first demand, procure that there are executed and registered in
favour of the Lender, first preferred Greek ship mortgages over the
Vessels in such form as the Lender shall require;
(f) the Borrower will not, without the prior written consent of the Lender
(which consent shall not be unreasonably withheld in the case of
sub-paragraphs (vi) and (viii) hereof):
(i) create, assume or permit to exist any mortgage, pledge, lien,
charge, encumbrance or any security interest whatsoever upon any of
its property or other assets, real or personal, tangible or
intangible, whether now owned or hereafter acquired otherwise than
under, or in accordance with, the Security Documents;
(ii) make any loans or advances to, or any investments in, any person,
firm, corporation, joint venture or other entity (including, without
limitation, any loan or advance to any officer, director,
stockholder, employee or customer of the Borrower) other than in
connection directly with the ownership, operation and trading of any
vessel;
(iii) after the date hereof borrow any money other than the Overdraft
Facility; (iv) assume, guarantee or endorse or otherwise become or
remain liable in connection with any obligation of any person, firm,
company or other entity;
(v) change the nature of its business as presently conducted;
(vi) declare dividends or make other distributions of any kind to its
shareholders or pay out any funds to any company or person except in
connection with the administration of the Borrower the repayment of
and payment of interest on the Overdraft Facility or as otherwise
permitted or required by or pursuant to the Agreement;
(vii) dissolve or consolidate with, or merge into, any other corporation,
or merge any other corporation into the Borrower; (viii) issue any
further shares or dispose or agree to dispose of any assets; (ix)
open any bank accounts in its name or with any other person at any
bank or other financial institution except the Lender;
7. SECURITY AND APPLICATION
7.1 It is declared and agreed that (i) the security created or to be created
by or pursuant to this Agreement shall be held by the Lender as a
continuing security for the payment of all moneys which may at any time
and from time to time be or become due and payable to the Lender under
this Agreement, (ii) the security so created shall not be satisfied by any
intermediate payment or satisfaction of any part of the amount hereby and
thereby secured, (iii) the security so created shall be in addition to and
shall not in any way be prejudiced or affected by any collateral or other
security now or hereafter held by the Lender for all or any part of the
moneys hereby and thereby secured, (iv) every power and remedy given to
the Lender hereunder shall be in addition to, and not a limitation of, any
and every other power or remedy vested in the Lender hereunder or
thereunder and (v) all the powers so vested in the Lender may be exercised
from time to time and as often as the Lender may deem expedient.
7.2 All moneys received by the Lender after the Overdraft Balance shall have
become repayable pursuant to Clause 3.4 and which are therein expressed to
be applicable in accordance with the provisions of this Clause shall be
applied by the Lender in or towards payment of all sums which may be owing
to the Lender under this Agreement or any of them in such manner as the
Lender shall in its sole and absolute discretion deem fit, and the surplus
(if any) shall be paid to the Borrower as it shall direct to the Lender by
tested telex or in writing by an authorised signatory of the Borrower
named on the Overdraft Account mandate form submitted by the Borrower to
the Lender or to whomsoever else may be entitled thereto.
8. ASSIGNMENTS AND TRANSFERS
8.1 This Agreement shall be binding upon, and enure to the benefit of, the
Borrower and the Lender and their respective successors and assigns except
that the Borrower may not assign any of its rights or obligations
hereunder without the prior written consent of the Lender. In giving
consent as aforesaid to any such assignment by the Borrower, the Lender
shall be entitled to impose such conditions as it shall think fit.
8.2
(a) The Lender shall be entitled to assign, transfer or sub-participate the
whole or any part of its rights or obligations under this Agreement (i) to
any subsidiary or holding company of the Lender or to any subsidiary
company of any holding company thereof or to a central bank or monetary or
regulatory authority having jurisdiction over the Lender or (ii) to any
other bank or financial institution whatsoever. The Lender shall be
entitled to disclose to any such assignee, transferee or sub-participant
as is referred to at (i) above or to any such assignee, transferee or
sub-participant pursuant to (ii) above such information in relation to the
Borrower and the Overdraft Facility and the security therefor.
(b) The Lender shall be entitled at any time to perform its obligations under
this Agreement through a branch of the Lender (not being a separate legal
entity) other than the branch specified in the definition of "Lender" in
Clause 1.2, and, in such case, the benefit of this Agreement shall enure
in favour of the Lender at such branch.
9. FEES AND EXPENSES
9.1 The Borrower shall pay to the Lender:
(a) on the date of execution of this Agreement a non-refundable facility fee
in an amount of $50,000;
(b) upon demand, all costs, charges and expenses (including all out-of-pocket
expenses and legal fees and V.A.T. thereon) incurred by the Lender in
connection with the negotiation, preparation, execution and (if required)
registration of, or the preservation of rights under and enforcement or
attempted enforcement of, this Agreement or otherwise in connection with
the Overdraft Facility or any part thereof (including, but not limited to,
any variation, amendment or supplement to any of the terms of this
Agreement); and
(c) upon demand, all stamp, registration or other duties (including any such
duties payable by the Lender) imposed by any relevant jurisdiction (or any
taxing authority therein or thereof) on this Agreement or otherwise in
connection with the Overdraft Facility or any part thereof.
9.2 The Lender shall be entitled (but not bound) to debit the Overdraft
Account on account of any legal fees and expenses incurred by the Lender
under Clause 9.1(b) or in respect of the facility fee due under Clause
9.1(a) and the Borrower hereby authorises the Lender to make any such
debit.
10. INCREASED COSTS, ETC.
10.1 If any applicable law, regulation or regulatory requirement or any change
therein or in the interpretation thereof, or if compliance by the Lender
with any applicable direction, request or requirement (whether or not
having the force of law) of any governmental or other authority, shall:
(a) subject the Lender to any Taxes with respect to the Overdraft Facility
(other than corporate Taxation on the Lender's overall net income), or
(b) change the basis of Taxation to the Lender of payments of principal or
interest or any other payment due or to become due pursuant to this
Agreement, or
(c) impose, modify or deem applicable any reserve requirements or require the
making of any special deposits against or in respect of any assets or
liabilities of, deposits with or for the account of, or loans by, the
Lender, or
(d) impose on the Lender any other condition affecting the Overdraft Facility
(including, without limitation, any capital adequacy requirements), and
the result of the foregoing is either to increase the cost to the Lender
of making available or maintaining the Overdraft Facility or to reduce the
amount of any payment received by the Lender, then and in any such case if
such increase or reduction in the opinion of the Lender materially affects
the interests of the Lender:
(i) the Lender shall notify the Borrower of the happening of such event;
and
(ii) the Borrower shall forthwith upon demand pay to the Lender such
amount as the Lender shall from time to time certify to be necessary
to compensate the Lender for such additional cost or such reduction.
11. INDEMNITIES AND SET-OFF
11.1
(a) The Borrower shall indemnify the Lender against any loss or damage which,
consequent upon any judgment being obtained or enforced in respect of the
non-payment by the Borrower of any amounts due under or pursuant to this
Agreement, arises from any variation in rates of exchange between the
currency in which such amount was due and the currency in which judgment
is obtained or enforced between the date of the said amount becoming due
(or the date of the said judgment being obtained as the case may be) and
the date of actual payment thereof.
(b) The Borrower shall indemnify the Lender on demand against all costs and
expenses arising out of the role of the Receiving Bank in relation to the
Overdraft Facility.
(c) The indemnities contained in this Clause 11.1 shall apply irrespective of
any indulgence granted to the Borrower or any other person from time to
time and shall continue in full force and effect notwithstanding any
payment in favour of the Lender and any amount due from the Borrower under
this Clause 11.1 will be due as a separate debt and shall not be affected
by judgment being obtained for any other sums due under or in respect of
this Agreement or the Security Documents.
11.2 The Borrower irrevocably authorises the Lender, at any time and from time
to time (and without notice), to apply any credit balance to which the
Borrower is then entitled on any account of the Borrower with the Lender
or at any of its offices in satisfaction of any sum due and payable from
the Borrower to the Lender under this Agreement. For this purpose, the
Lender is authorised to purchase with the moneys standing to the credit of
such account such other currencies as may be necessary to effect such
application. The Lender shall not be obliged to exercise any right given
to it by this Clause 11.2.
12. LAW AND JURISDICTION
12.1 This Agreement shall be governed by, and construed in accordance with,
English law.
12.2 For the exclusive benefit of the Lender the Borrower agrees that any legal
action or proceeding arising out of this Agreement may be brought in the
High Court of Justice in England and irrevocably submits to the
jurisdiction of that court. The Borrower hereby irrevocably designates,
appoints and empowers Agelef Shipping Company (London) Ltd. whose
registered office is at 00 Xxxxxxxx Xxxxx, Xxxxxx XX 0X, Xxxxxxx to
receive for and on behalf of the Borrower service of process in England
provided that such designation shall not affect the ability of the Lender
to serve any such process in any other manner permitted by applicable law.
The submission by the Borrower to such jurisdiction shall not (and shall
not be construed so as to) limit the right of the Lender to commence any
proceedings arising out of this Agreement in whatsoever jurisdiction shall
to it seem fit.
13. NOTICES, ETC.
13.1 Every notice or demand under this Agreement shall be given or made by
telex or fax or, in the event of breakdown of telex communications, by
letter.
13.2 Every notice or demand shall be sent to the Lender at its address or telex
or fax number specified in Clause 1.2. Notices or demands shall be sent to
the Borrower care of Anangel Shipping Enterprises S.A. of 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxx (fax no. (000) 000 0000). Any notice sent by telex
or facsimile shall be confirmed by prepaid airmail letter posted as soon
as practicable thereafter but the failure of the addressee to receive such
letter shall not prejudice the validity or effect of such telex or
facsimile notice.
13.3 Every notice or demand shall, except so far as otherwise expressly
provided by this Agreement, be deemed to have been received in the case of
a telex or facsimile at the time of dispatch or transmission thereof
(provided that, if the date of dispatch or transmission is not a Business
Day in the country of the party to whom such notice or demand is sent, it
shall be deemed to have been received on the next following Business Day
in the country of the addressee) and, in the case of a letter, upon actual
receipt.
14. MISCELLANEOUS
14.1 Time is of the essence of this Agreement but no failure or delay on the
part of the Lender to exercise any power or right under this Agreement or
a Negative Pledge shall operate as a waiver thereof, nor shall any single
or partial exercise by the Lender of any power or right hereunder or under
a Negative Pledge or any of them preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided herein
and in the Negative Pledges are cumulative and are not exclusive of any
remedies provided by law.
14.2 In case any one or more of the provisions contained in this Agreement or
the Negative Pledge should be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions herein or therein contained shall not in any way be
affected or impaired thereby.
14.3 The provisions of this Agreement and, where relevant, of the Negative
Pledge shall be read together but, in event of any conflict between the
provisions herein and therein contained, the provisions of this Agreement
shall prevail.
14.4 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the
benefit of any term of this Agreement.
SCHEDULE
The Mandatory Cost Rate will be calculated in accordance with the following
formula:
F x 0.01
--------
300
where on the day(s) of application of the formula:
F. is the rate of charge payable by the Lender to the Financial Services
Authority pursuant to paragraph 2 of the Fees Regulations (but where for
this purpose, the figure at paragraph 2.02b/2.03b shall be deemed to be
zero) and expressed in pounds per (pound)1 million of the Fee Base of the
Lender.
For the purposes of this Schedule:
Fee Base has the meaning ascribed to it for the purposes of, and all be
calculated in accordance with, the Fees Regulations.
Fees Regulations means, as appropriate, either the Banking Supervision (Fees)
Regulations 1998 or such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision in respect of periods
subsequent to 31 March 1999.
Any reference to a provision of any statute, directive, order or regulation
herein is a reference to that provision as amended or re-enacted from time to
time.
If alternative or additional financial requirements are imposed which in the
Lender's opinion make the formula set out above no longer appropriate, the
Lender shall be entitled to stipulate such other formula as shall be suitable to
apply in substitution for the formula set out above.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed by their authorised officers or other representatives the day and year
first above written.
SIGNED by )
for and on behalf of )
ANANGEL-AMERICAN SHIPHOLDINGS )
LIMITED in the presence of: )
SIGNED by )
for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC )
in the presence of: )
