LOAN AGREEMENT for a Loan of up to US$101,150,000 to TEAM-UP OWNING COMPANY LIMITED and ORPHEUS OWNING COMPANY LIMITED provided by THE BANKS AND FINANCIAL INSTITUTIONS SET OUT IN SCHEDULE 1 Arranger, Agent, Security Agent and Account Bank DNB NOR BANK...
EXHIBIT 4.12
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for
a Loan of up to US$101,150,000
to
TEAM-UP
OWNING COMPANY LIMITED
and
ORPHEUS
OWNING COMPANY LIMITED
provided
by
THE
BANKS AND FINANCIAL INSTITUTIONS SET OUT IN SCHEDULE 1
Arranger,
Agent, Security Agent
and
Account Bank
DNB
NOR BANK ASA
Swap
Provider
DNB
NOR BANK ASA
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Contents
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Clause
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Page
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1
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Purpose
and definitions
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1
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2
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The
Total Commitment and the Advances
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13
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3
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Interest
and Interest Periods
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15
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4
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Repayment
and prepayment
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17
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5
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Fees
and expenses
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19
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6
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Payments
and taxes; accounts and calculations
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20
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7
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Representations
and warranties
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22
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8
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Undertakings
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27
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9
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Conditions
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32
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10
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Events
of Default
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33
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11
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Indemnities
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37
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12
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Unlawfulness
and increased costs
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38
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13
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Security,
set-off and pro-rata payments
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40
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14
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Operating
Accounts
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42
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15
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Assignment,
transfer and lending office
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43
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16
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Arranger,
Agent and Security Agent
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45
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17
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Notices
and other matters
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54
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18
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Governing
law and jurisdiction
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57
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Schedule 1
The Banks and their Commitments
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58
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Schedule 2
Form of Drawdown Notice
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59
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Schedule 3
Documents and evidence required as conditions precedent to the Loan being
made
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60
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Schedule 4
Form of Transfer Certificate
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66
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Schedule 5
Form of Trust Deed
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70
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Schedule 6
Mandatory Cost formula
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71
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Schedule 7
Form of Mortgage
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73
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Schedule 8
Form of Deed of Covenant
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74
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Schedule 9
Form of Corporate Guarantee
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75
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Schedule 10
Form of Manager’s Undertakings
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76
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Schedule 11
Form of Master Swap Agreement
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77
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Schedule 12
Form of Swap Assignment
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78
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Schedule 13
Form of Operating Account Assignment
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79
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THIS
AGREEMENT is dated
December 2007 and made BETWEEN:
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(1)
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TEAM-UP
OWNING COMPANY LIMITED and
ORPHEUS OWNING COMPANY LIMITED as
joint and several
Borrowers;
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(2)
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DNB
NOR BANK ASA as Arranger, Agent, Security Agent and Account
Bank;
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(3)
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DNB
NOR BANK ASA as Swap Provider;
and
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(4)
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THE
BANKS AND FINANCIAL INSTITUTIONS whose names are set out in
schedule 1 as Banks.
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IT
IS AGREED as follows:
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Purpose
and definitions
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1.1
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Purpose
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This
Agreement sets out the terms and conditions upon and subject to which the Banks
agree, according to their several obligations, to make available to the
Borrowers, jointly and severally, in two (2) Advances, a loan of up to One
hundred and one million one hundred and fifty thousand Dollars ($101,150,000)
for the purpose of assisting the Borrowers to finance part of the acquisition
cost of the Ships.
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1.2
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Definitions
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In this
Agreement, unless the context otherwise requires:
“Account Bank” means DnB NOR
Bank ASA, a company incorporated in Norway with its registered office at
Stranden 21, P.O. Box 1171 Sentrum N-0107 Oslo, Norway, acting for the purposes
of this Agreement through its branch at 00 Xx. Xxxxxxx’x Xxxx, London EC3R 8HY,
England (or of such other address as may last have been notified to the other
parties to this Agreement pursuant to clause 17.1.3) or such other person as may
be appointed as Account Bank by the Agent for the purposes of this Agreement and
includes its successors in title;
“Agent” means DnB NOR Bank ASA,
a company incorporated in Norway with its registered office at Stranden 21, P.O.
Box 1171 Sentrum N-0107 Oslo, Norway, acting for the purposes of this Agreement
through its branch at 00 Xx. Xxxxxxx’x Xxxx, London EC3R 8HY, England (or of
such other address as may last have been notified to the other parties to this
Agreement pursuant to clause 17.1.3) or such other person as may be appointed as
agent by the Banks and the Swap Provider pursuant to clause 16.13 and
includes its successors in title;
“Advance” means each borrowing
of a proportion of the Total Commitment by the Borrowers or (as the context may
require) the principal amount of such borrowing and means:
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(a)
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in
relation to
Saldanha, the Saldanha Advance;
and
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(b)
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in
relation to Avoca, the Avoca
Advance,
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and
“Advances” means either
or both of them;
“Applicable Accounting
Principles” means the most recent and up-to-date US GAAP at any relevant
time;
“Approved Shipbrokers” means,
together, X. Xxxxxxxx and Company Ltd of London, England, Arrow Research Ltd. of
London, England, Astrup Fearnley A/S of Oslo, Norway, X.X. Xxxxxx Shipbrokers of
Oslo, Norway and any other independent firm of shipbrokers nominated by the
Borrowers and approved by the Agent in its absolute discretion and “Approved Shipbroker” means any of
them;
1
“Arranger” means DnB NOR Bank
ASA, a company incorporated in Norway with its registered office at Xxxxxxxx 00,
X.X. Xxx 0000 Xxxxxxx, X-0000 Xxxx, Xxxxxx acting for the purposes of this
Agreement through its branch at 00 Xx. Xxxxxxx’x Xxxx, London EC3R 8HY, England
(or of such other address as may last have been notified to the other parties to
this Agreement pursuant to clause 17.1.3) and includes its successors in
title;
“Available Commitment” means,
in relation to a Bank, the amount of its Commitment less the amount of its
Contribution;
“Avoca”
means the motor vessel Nord
Mercury to be purchased by the relevant Seller and registered under the
laws and flag of Panama with IMO Number 9310446 and to be registered on its
Delivery Date under the name and in the ownership of the Avoca Borrower through
the relevant Registry and under the laws and flag of the relevant Flag State
with the name Avoca;
“Avoca Advance” means an
Advance of up to Forty eight million six hundred and fifty thousand Dollars
($48,650,000) made or (as the context may require) to be made available to the
Borrowers for the purpose of financing part of the acquisition cost of Avoca by the Avoca Borrower
pursuant to the Avoca Contract;
“Avoca Borrower” means Orpheus
Owning Company Limited of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Xxxxxxxx Xxxxxxx, XX00000 and includes its successors in
title;
“Avoca Contract” means the
memorandum of agreement dated 26 July 2007 made between the relevant Seller, the
Manager and the Corporate Guarantor, as novated in favour of the Avoca Borrower
pursuant to an Addendum No. 1 thereto dated 26 July 2007 and as may be further
amended and supplemented from time to time, relating to the sale by the relevant
Seller and the purchase by the Avoca Borrower, of Avoca;
“Avoca Contract Price” means
the purchase price payable by the Avoca Borrower to the relevant Seller for
Avoca under the Avoca
Contract, being Sixty nine million five hundred thousand Dollars ($69,500,000)
or such other sum as is determined under the terms of the Avoca Contract to be
the purchase price of Avoca
thereunder;
“Avoca Deed of Covenant” means
the deed of covenant collateral to the Avoca Mortgage executed or (as the
context may require) to be executed by the Avoca Borrower in favour of the
Security Agent in the form set out in schedule 8;
“Avoca Management Agreement”
means the agreement dated as of 10 January 2008 made between the Avoca Borrower,
the Corporate Guarantor and the Manager or any other agreement previously
approved in writing by the Agent between the Avoca Borrower and the Manager,
providing (inter alia)
for the Manager to manage Avoca;
“Avoca Manager’s Undertaking”
means the undertaking and assignment in respect of Avoca executed or (as the
context may require) to be executed by the Manager in favour of the Security
Agent in the form set out in schedule 10;
“Avoca Mortgage” means the
first priority statutory Maltese mortgage of Avoca executed or (as the
context may require) to be executed by the Avoca Borrower in favour of the
Security Agent in the form set out in schedule 7;
“Avoca Operating Account” means
an interest bearing Dollar account of the Avoca Borrower opened or (as the
context may require) to be opened with the Account Bank and includes any
sub-accounts thereof and any other account designated in writing by the Agent to
be an Avoca Operating Account for the purposes of this Agreement;
2
“Avoca Operating Account
Assignment” means a first priority assignment executed or (as the context
may require) to be executed by the Avoca Borrower in favour of the Security
Agent in respect of the Avoca Operating Account in the form set out in schedule
13;
“Balloon Instalment” shall have
the meaning ascribed thereto in clause 4.1;
“Banks” means the banks and
financial institutions listed in schedule 1 and includes their respective
successors in title and Transferee Banks and “Bank” means any of
them;
“Banking Day” means a day on
which dealings in deposits in Dollars are carried on in the London Interbank
Eurocurrency Market and (other than Saturday or Sunday) on which banks are open
for business in London, Athens and New York City (or any other relevant place of
payment under clause 6);
“Borrower”:
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(a)
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in
relation to Avoca
and/or the Avoca Advance, means the Avoca Borrower;
or
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(b)
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in
relation to Saldanha and/or the
Saldanha Advance, means the Saldanha
Borrower,
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and
“Borrowers” means either
or both of them;
“Borrowed Money” means
Indebtedness in respect of (i) money borrowed or raised and debit balances at
banks, (ii) any bond, note, loan stock, debenture or similar debt instrument,
(iii) acceptance or documentary credit facilities, (iv) receivables sold or
discounted (otherwise than on a non-recourse basis), (v) deferred payments for
assets or services acquired, (vi) finance leases and hire purchase contracts,
(vii) swaps, forward exchange contracts, futures and other derivatives, (viii)
any other transaction (including without limitation forward sale or purchase
agreements) having the commercial effect of a borrowing or raising of money or
of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of
any person falling within any of (i) to (viii) above;
“Borrowers' Security Documents”
means, at any relevant time, such of the Security Documents as shall have been
executed by either of the Borrowers at such time;
“Classification” means, in
relation to each Ship, the highest class available to a vessel of such Ship’s
type with the relevant Classification Society or such other classification as
the Agent shall, at the request of a Borrower, have agreed in writing shall be
treated as the Classification in relation to such Borrower's Ship for the
purposes of the relevant Ship Security Documents;
“Classification Society” means
such classification society (being a member of the International Association of
Classification Societies (“IACS”)) which the Agent shall,
at the request of a Borrower, have agreed in writing shall be treated as the
Classification Society in relation to such Borrower's Ship for the purposes of
the relevant Ship Security Documents;
“Code” means the International
Management Code for the Safe Operation of Ships and for Pollution Prevention
constituted pursuant to Resolution A. 741 (18) of the International Maritime
Organisation and incorporated into the Safety of Life at Sea Convention and
includes any amendments or extensions thereto and any regulation issued pursuant
thereto;
“Commitment” means, in relation
to each Bank, the amount set out opposite its name in the column headed “Commitment” in schedule 1,
and/or, in the case of a Transferee Bank, the amount transferred as specified in
the relevant Transfer Certificate, as reduced in each case by any relevant term
of this Agreement;
3
“Compliance Certificate” means
each certificate received or (as the context may require) to be received by the
Agent pursuant to clause 5.1 of the Corporate Guarantee in the form set out in
the schedule to the Corporate Guarantee;
“Compulsory Acquisition” means
requisition for title or other compulsory acquisition, requisition,
appropriation, expropriation, deprivation, forfeiture or confiscation for any
reason of a Ship by any Government Entity or other competent authority, whether
de jure or de facto, but shall exclude requisition for use or hire not involving
requisition of title;
“Confirmation” shall have, in
relation to any continuing Designated Transaction, the meaning ascribed to it in
the Master Swap Agreement;
“Contracts” means, together,
the Saldanha Contract and the Avoca Contract and “Contract” means either of
them;
“Contribution” means, in
relation to each Bank, the principal amount of the Loan owing to such Bank at
any relevant time;
“Corporate Guarantee” means the
corporate guarantee issued or (as the context may require) to be issued by the
Corporate Guarantor in favour of the Security Agent in the form set out in
schedule 9;
“Corporate Guarantor” means
DryShips Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
Xxxxxxxx Islands MH96960, and includes its successors in title;
“Creditors” means, together,
the Arranger, the Agent, the Security Agent, the Swap Provider, the Account Bank
and the Banks and “Creditor” means any of
them;
“Deed of Covenant”
means:
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(a)
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in
relation to Saldanha, the Saldanha
Deed of Covenant; or
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(b)
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in
relation to Avoca, the Avoca Deed
of Covenant,
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and
“Deeds of Covenant”
means either or both of them;
“Default” means any Event of
Default or any event or circumstance which with the giving of notice or lapse of
time or the satisfaction of any other condition (or any combination thereof)
would constitute an Event of Default;
“Delivery Date” means, in
relation to each Ship, the date on which such Ship is delivered to, and accepted
by, the relevant Borrower in accordance with the relevant Contract;
“Designated Transaction” means
a Transaction which fulfils the following requirements:
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(a)
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it
is entered into by the Borrowers pursuant to the Master Swap Agreement
with the Swap Provider as contemplated by clause 2.9;
and
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(b)
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its
purpose is the hedging of the Borrowers’ exposure under this Agreement to
fluctuations of LIBOR arising from the funding of the Loan (or any part
thereof) for a period expiring no later than the final Repayment Date for
the Loan or the relevant part
thereof;
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“DOC” means a document of
compliance issued to an Operator in accordance with rule 13 of the
Code;
4
“Dollars” and “$” mean the lawful currency of
the United States of America and, in respect of all payments to be made under
any of the Security Documents, mean funds which are for same day settlement in
the New York Clearing House Interbank Payments System (or such other U.S. dollar
funds as may at the relevant time be customary for the settlement of
international banking transactions denominated in U.S. dollars);
“Drawdown Date” means any date,
being a Banking Day falling during the Drawdown Period, on which an Advance is,
or is to be, made available;
“Drawdown Notice” means, in
relation to each Advance, a notice substantially in the form of schedule 2
in respect of such Advance;
“Drawdown Period” means, in
relation to each Advance, the period from the date of this Agreement and ending
on the earlier of (a) the Termination Date, (b) the date on which the aggregate
amount of the Advances is equal to the Total Commitment and (c) the date on
which the Total Commitment is reduced to zero pursuant to clauses 4.3, 10.2
or 12;
“Early Termination Date” shall
have, in relation to any continuing Designated Transaction, the meaning ascribed
to it in the Master Swap Agreement;
“Encumbrance” means any
mortgage, charge (whether fixed or floating), pledge, lien, hypothecation,
assignment, trust arrangement or security interest or other encumbrance of any
kind securing any obligation of any person or any type of preferential
arrangement (including without limitation title transfer and/or retention
arrangements) having a similar effect;
“Environmental Affiliate” means
any agent or employee of either Borrower or any other Relevant Party or any
person having a contractual relationship with either Borrower or any other
Relevant Party in connection with any Relevant Ship or its operation or the
carriage of cargo and/or passengers thereon and/or the provision of goods and/or
services on or from such Relevant Ship;
“Environmental Approval” means
any consent, authorisation, licence or approval of any governmental or public
body or authorities or courts applicable to any Relevant Ship or its operation
or the carriage of cargo and/or passengers thereon and/or the provision of goods
and/or services on or from such Relevant Ship required under any Environmental
Law;
“Environmental Claim” means any
and all enforcement, clean-up, removal or other governmental or regulatory
actions or orders instituted or completed pursuant to any Environmental Law or
any Environmental Approval together with claims made by any third party relating
to damage, contribution, loss or injury, resulting from any actual or threatened
emission, spill, release or discharge of a Pollutant from any Relevant
Ship;
“Environmental Laws” means all
national, international and state laws, rules, regulations, treaties and
conventions applicable to any Relevant Ship pertaining to the pollution or
protection of human health or the environment including, without limitation, the
carriage of Pollutants and actual or threatened emissions, spills, releases or
discharges of Pollutants;
“Equity Ratio” in relation to a
Measurement Period, has the meaning given to it in the Corporate Guarantee for
the Accounting Period (as defined in the Corporate Guarantee) corresponding to
such Measurement Period;
“Event of Default” means any of
the events or circumstances described in clause 10.1;
“Fee Letter” means the letter
of even date herewith made between the Arranger, the Agent, the Borrowers and
the Corporate Guarantor in respect of certain of the fees payable under clause
5.1;
5
“First Repayment Date” means,
subject to clause 6.3, the date falling three (3) months after the earlier of
(a) the Drawdown Date of the second Advance to be drawn down under this
Agreement and (b) the Termination Date;
“Flag State” means, in relation
to a Ship, Malta or such other state or territory designated in writing by the
Agent, at the request of the Borrower owning such Ship, as being the “Flag State” of such Ship for
the purposes of the relevant Ship Security Documents;
“Government Entity” means and
includes (whether having a distinct legal personality or not) any national or
local government authority, board, commission, department, division, organ,
instrumentality, court or agency and any association, organisation or
institution of which any of the foregoing is a member or to whose jurisdiction
any of the foregoing is subject or in whose activities any of the foregoing is a
participant;
“Group” means, together, the
Corporate Guarantor and its Subsidiaries from time to time (including, for the
avoidance of doubt, the Borrowers) and “member of Group” shall be
constructed accordingly;
“Indebtedness” means any
obligation for the payment or repayment of money, whether as principal or as
surety and whether present or future, actual or contingent;
“Interest Payment Date” means
the last day of an Interest Period;
“Interest
Period” means, in relation to an Advance or (as the case may be) the
Loan, each period for the calculation of interest in respect of such Advance or
(as the case may be) the Loan, ascertained in accordance with clauses 3.2 and
3.3;
“ISPS Code” means the
International Ship and Port Facility Security Code constituted pursuant to
resolution A.924(22) of the International Maritime Organization now set out in
Chapter XI-2 of the International Convention for the Safety of Life at Sea 1974
(as amended) as adopted by a Diplomatic conference of the International Maritime
Organisation on Maritime Security in December 2002 and includes any amendments
or extensions thereto and any regulation issued pursuant thereto;
“ISSC” means, in relation to
each Ship, an International Ship Security Certificate issued in respect of that
Ship pursuant to the ISPS Code;
“LIBOR” means in relation to a
particular period:
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(a)
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the
rate for deposits of the relevant currency for a period equivalent to such
period at or about 11:00 a.m. on the Quotation Date for such period as
displayed on Reuters page LIBOR 01 (British Bankers’
Association Interest Settlement Rates) (or such other page as may replace
such page LIBOR 01 on such system or on any other system of the
information vendor for the time being designated by the British Bankers’
Association to calculate the BBA Interest Settlement Rate (as defined in
the British Bankers’ Association’s Recommended Terms and Conditions
(“BBAIRS” terms)
applicable at the relevant time));
or
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(b)
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provided
that if on such date no such rate is so displayed, LIBOR for such period
shall be the arithmetic mean of the rates quoted to the Agent by the
Reference Banks at the request of the Agent as the Reference Banks’
offered rate for deposits of the relevant currency in an amount
approximately equal to the amount in relation to which LIBOR is to be
determined for a period equivalent to such period to prime banks in the
London Interbank Market at or about 11:00 a.m. on the Quotation Date for
such period;
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“Loan” means the aggregate
principal amount owing to the Banks under this Agreement at any relevant
time;
6
“Majority Banks” means, at any
relevant time, Banks (a) the aggregate of whose Contributions exceeds Sixty-six
point six per cent (66.6%) of the Loan or (b) (if no principal amounts are
outstanding under this Agreement) the aggregate of whose Commitments exceeds
Sixty-six point six per cent (66.6%) of the Total Commitment;
“Manager” means Cardiff Marine
Inc. of 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx or any other person appointed by a
Borrower, with the prior written consent of the Majority Banks as the technical
and commercial manager of such Borrower’s Ship and includes its successors in
title;
“Management Agreement”
means:
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(a)
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in
relation to Saldanha, the Saldanha
Management Agreement; or
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(b)
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in
relation to Avoca, the Avoca
Management Agreement,
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and
“Management Agreements”
means either or both of them;
“Manager’s Undertaking”
means:
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(a)
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in
relation to Saldanha, the Saldanha
Manager’s Undertaking; or
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(b)
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in
relation to Avoca, the Avoca
Manager’s Undertaking,
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and
“Manager’s Undertakings”
means either or both of them;
“Mandatory Cost” means, in
relation to any period, a percentage calculated by the Agent for such period at
an annual rate determined by the application of the formula set out in schedule
6;
“Margin” means (as calculated
by the Agent pursuant to clause 3.1.2):
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(a)
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(subject
to paragraph (b) below) in relation to each Margin
Period:
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(i)
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if
the Equity Ratio for the relevant Measurement Period shall be lower than
0.45:1.00, one point two zero per cent (1.20%) per annum;
or
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(ii)
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if
the Equity Ratio for the relevant Measurement Period shall be equal to or
higher than 0.45:1.00 but equal to or lower than 0.55:1.00, one point one
zero per cent (1.10%) per annum; or
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(iii)
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if
(A) the Equity Ratio for the relevant Measurement Period shall be higher
than 0.55:1.00 or (B) an Event of Default has occurred and is continuing,
one per cent (1%) per annum; or
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(b)
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notwithstanding
paragraph (a) above, Margin for any Margin Periods falling between the
first Drawdown Date and 31 December 2008, shall be the higher of (i) one
point one zero per cent (1.10%) per annum and (ii) the interest rate per
annum determined for that period by the application of paragraph
(a);
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“Margin Calculation Date” means
each 1 January (commencing with 1 January 2009) and 1 July (commencing with 1
July 2009) of each calendar year;
“Margin Period” means each
period commencing on a Margin Calculation Date and ending on the day prior to
the subsequent Margin Calculation Date and “Margin Periods” means any or
all of them;
7
“Master Swap Agreement” means
the agreement made or (as the context may require) to be made between the Swap
Provider and the Borrowers comprising an ISDA Master Agreement (including the
Schedule) in the form set out in schedule 11 and includes any Designated
Transactions from time to time entered into and any Confirmations (as defined
therein) from time to time exchanged thereunder and governed
thereby;
“Measurement Period”
means:
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(a)
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in
relation to each Margin Period commencing on 1 January of any calendar
year, the nine-month period ending on 30 September of the immediately
preceding calendar year; and
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(b)
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in
relation to each Margin Period commencing on 1 July of any calendar year,
the twelve-month period ending on 31 December of the immediately preceding
calendar year;
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“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 (a) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it shall
end on the last Banking Day in such next calendar month and (b) if such
numerically corresponding day is not a Banking Day, the period shall end on the
next following Banking Day in the same calendar month but if there is no such
Banking Day it shall end on the preceding Banking Day and “months” and “monthly” shall be construed
accordingly;
“Mortgage” means:
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(a)
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in
relation to Saldanha, the Saldanha
Mortgage; or
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(b)
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in
relation to Avoca, the Avoca
Mortgage,
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and
“Mortgages” means either
or both of them;
“Mortgaged
Ship” means, at any relevant time, any Ship which is at such time subject
to a Mortgage and/or the Earnings, Insurances and Requisition Compensation (as
defined in the relevant Ship Security Documents) of which are subject to an
Encumbrance pursuant to the relevant Ship Security Documents and a Ship shall
for the purposes of this Agreement be deemed to be a Mortgaged Ship as from
whichever shall be the earlier of (a) the drawdown of the Advance relating to
that Ship and (b) the date that the Mortgage of that Ship shall have been
executed and registered in accordance with this Agreement until whichever shall
be the earlier of (i) the payment in full of the amount required by the Agent to
be paid pursuant to clause 4.3 following the sale or
Total Loss of such Ship and (ii) the date on which all moneys owing under the
Security Documents have been repaid in full;
“Operating Account” means:
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(a)
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in
relation to Saldanha, the Saldanha
Operating Account; or
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(b)
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in
relation to Avoca, the Avoca
Operating Account,
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and
“Operating Accounts”
means either or both of them;
“Operating Account Assignment”
means:
|
|
(a)
|
in
relation to Saldanha, the Saldanha
Operating Account Assignment; or
|
|
|
(b)
|
in
relation to Avoca, the Avoca
Operating Account Assignment,
|
8
and
“Operating Account
Assignments” means either or both of them;
“Operator” means any person who
is from time to time during the Security Period (as defined in each Mortgage)
concerned in the operation of a Ship and falls within the definition of
“Company” set out in rule 1.1.2 of the Code;
“Permitted Encumbrance” means
any Encumbrance in favour of the Security Agent created pursuant to the Security
Documents and Permitted Liens;
“Permitted Liens” means, in
respect of each Ship:
|
|
(a)
|
any
lien on such Ship for master's, officer's or crew's wages outstanding in
the ordinary course of trading;
|
|
|
(b)
|
any
lien for salvage; and
|
|
|
(c)
|
any
ship repairer's or outfitter's possessory lien for a sum not (except with
the prior written consent of the Agent) exceeding the Casualty Amount (as
defined in the relevant Ship Security Documents) for such
Ship;
|
“Pollutant” means and includes
pollutants, contaminants, toxic substances, oil as defined in the United States
Oil Pollution Act of 1990 and all hazardous substances as defined in the United
States Comprehensive Environmental Response, Compensation and Liability Xxx
0000;
“Quotation Date” means, in
respect of any period for which LIBOR falls to be determined under this
Agreement, the second Banking Day before the first day of such
period;
“Reference Banks” means the
Agent and any other bank or financial institution appointed as a Reference Bank
by the Agent from time to time;
“Registry” means, in respect of
a Ship, such registrar, commissioner or representative of the relevant Flag
State who is duly authorised and empowered to register such Ship, the relevant
Borrower's title to such Ship and the relevant Mortgage under the laws and flag
of the relevant Flag State;
“Related Company” of a person
means any Subsidiary of such person, any company or other entity of which such
person is a Subsidiary and any Subsidiary of any such company or
entity;
“Relevant Jurisdiction” means
any jurisdiction in which or where any Security Party is incorporated, resident,
domiciled, has a permanent establishment, carries on, or has a place of business
or is otherwise effectively connected;
“Relevant Party” means each of
the Borrowers, any other Security Party and any other member of the
Group;
“Relevant Ship” means the Ships
and any other vessel from time to time (whether before or after the date of this
Agreement) owned, managed or crewed by, or chartered to, any Relevant
Party;
“Repayment Dates” means,
subject to clause 6.3, the First Repayment Date and each of the dates falling at
three (3) monthly intervals thereafter up to and including the earlier of (a) 31
January 2015 and (b) the date falling eighty one (81) months after the First
Repayment Date;
“Saldanha”
means the motor vessel Shinyo
Brilliance to be purchased by the relevant Seller and registered under
the laws and flag of Panama with IMO Number 9268992 and to be registered on its
Delivery Date under the name and in the ownership of the Saldanha Borrower
through the relevant Registry and under the laws and flag of the relevant Flag
State with the name Saldanha;
9
“Saldanha Advance” means an
Advance of up to Fifty two million five hundred thousand Dollars ($52,500,000)
made or (as the context may require) to be made available to the Borrowers for
the purpose of financing part of the acquisition cost of Saldanha by the Saldanha
Borrower pursuant to the Saldanha Contract;
“Saldanha Borrower” means
Team-Up Owning Company Limited of Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Xxxxxxxx Xxxxxxx, XX00000 and includes its successors in
title;
“Saldanha Contract” means the
memorandum of agreement dated 6 August 2007 made between the relevant Seller and
the Manager, as novated in favour of the Saldanha Borrower pursuant to an
Addendum No. 1 thereto dated 7 August 2007 and as may be further amended and
supplemented from time to time, relating to the sale by the relevant Seller, and
the purchase by the Saldanha Borrower, of Saldanha;
“Saldanha Contract Price” means
the purchase price payable by the Saldanha Borrower to the relevant Seller for
Saldanha under the
Saldanha Contract, being Seventy five million Dollars ($75,000,000) or such
other sum as is determined under the terms and conditions of the Saldanha
Contract to be the purchase price of Saldanha
thereunder;
“Saldanha Deed of Covenant”
means the deed of covenant collateral to the Saldanha Mortgage executed or (as
the context may require) to be executed by the Saldanha Borrower in favour of
the Security Agent in the form set out in schedule 8;
“Saldanha Management Agreement”
means the agreement dated 24 November 2007 made between the Saldanha Borrower,
the Corporate Guarantor and the Manager or any other agreement previously
approved in writing by the Agent between the Saldanha Borrower and the Manager
providing (inter alia)
for the Manager to manage Saldanha;
“Saldanha Manager’s
Undertaking” means the undertaking and assignment in respect of Saldanha executed or (as the
context may require) to be executed by the Manager in favour of the Security
Agent in the form set out in schedule 10;
“Saldanha Mortgage” means the
first priority statutory Maltese mortgage of Saldanha executed or (as the
context may require) to be executed by the Saldanha Borrower in favour of the
Security Agent in the form set out in schedule 7;
“Saldanha Operating Account”
means an interest bearing Dollar account of the Saldanha Borrower opened or (as
the context may require) to be opened with the Account Bank and includes any
sub-accounts thereof and any other account designated in writing by the Agent to
be a Saldanha Operating Account for the purposes of this Agreement;
“Saldanha Operating Account
Assignment” means a first priority assignment executed or (as the context
may require) to be executed by the Saldanha Borrower in favour of the Security
Agent in respect of the Saldanha Operating Account in the form set out in
schedule 13;
“Security Agent” means DnB NOR
Bank ASA, a company incorporated in Norway with its registered office at
Stranden 21, P.O. Box 1171 Sentrum N-0107 Oslo, Norway, acting for the purposes
of this Agreement through its branch at 00 Xx. Xxxxxxx’x Xxxx, London EC3R 8HY,
England (or of such other address as may last have been notified to the other
parties to this Agreement pursuant to clause 17.1.3) or such other person as may
be appointed as security agent and trustee by the Banks, the Agent and the Swap
Provider pursuant to clause 16 and includes its successors in
title;
10
“Security Documents” means this
Agreement, the Fee Letter, the Master Swap Agreement, the Mortgages, the Deeds
of Covenant, the Operating Account Assignments, the Corporate Guarantee, the
Manager’s Undertakings and the Swap Assignment and any other documents as may
have been or shall from time to time after the date of this Agreement be
executed to guarantee and/or secure all or any part of the Loan, interest
thereon and other moneys from time to time owing by the Borrowers and/or any
other Security Party pursuant to this Agreement and/or any other Security
Document (whether or not any such document also secures moneys from time to time
owing pursuant to any other document or agreement);
“Security Party” means the
Borrowers, the Manager, the Corporate Guarantor or any other person who may at
any time be a party to any of the Security Documents (other than the
Creditors);
“Security Requirement” means
the amount in Dollars (as certified by the Agent whose certificate shall, in the
absence of manifest error, be conclusive and binding on the Borrowers and the
other Creditors) which is at any relevant time, one hundred and twenty five per
cent (125%) of the aggregate of (a) the Loan and (b) the Swap Exposure, as at
the relevant time;
“Security Value” means the
amount in Dollars (as certified by the Agent whose certificate shall, in the
absence of manifest error, be conclusive and binding on the Borrowers and the
other Creditors) which is, at any relevant time, the aggregate of (a) the market
value of the Mortgaged Ships as most recently determined in accordance with
clause 8.2.2 and (b) the market value of any additional security for the time
being actually provided to the Creditors pursuant to clause
8.2.1(b);
“Seller” means:
|
|
(a)
|
in
respect of Saldanha, Golden Ocean
Group Limited of Hamilton, Bermuda and includes its successors in title;
or
|
|
|
(b)
|
in
respect of Avoca,
Dampskibsselskabet Xxxxxx X/X xx 00 Xxxxxxxxxx, XX-0000 Xxxxxxxxxx,
Xxxxxxx and includes its successors in
title,
|
and
“Sellers” means either
or both of them;
“Ship”:
|
|
(a)
|
in
relation to the Saldanha Borrower and/or the Saldanha Advance, means Saldanha;
or
|
|
|
(b)
|
in
relation to the Avoca Borrower and/or the Avoca Advance, means Avoca,
|
and
“Ships” means either or
both of them;
“Ship Security
Documents”:
|
|
(a)
|
in
respect of Saldanha, means the
Saldanha Mortgage, the Saldanha Deed of Covenant and the Saldanha
Manager’s Undertaking; or
|
|
|
(b)
|
in
respect of Avoca,
means the Avoca Mortgage, the Avoca Deed of Covenant and the Avoca
Manager’s Undertaking;
|
“SMC” means a safety management
certificate issued in respect of a Ship in accordance with rule 13 of the
Code;
11
“Subsidiary” of a person means
any company or entity directly or indirectly controlled by such person, and for
this purpose “control”
means either the ownership of more than fifty per cent (50%) of the voting share
capital (or equivalent rights of ownership) of such company or entity or the
power to direct its policies and management, whether by contract or
otherwise;
“Swap Assignment” means the
assignment executed or (as the context may require) to be executed by the
Borrowers in favour of the Security Agent in relation to certain of the rights
of the Borrowers under the Master Swap Agreement in the form set out in schedule
12;
“Swap Exposure” means, as at
any relevant time, the amount certified by the Swap Provider to the Agent to be
the aggregate net amount in Dollars which would be payable by the Borrowers to
the Swap Provider under (and calculated in accordance with) section 6(e)
(Payments on Early Termination) of the Master Swap Agreement if an Early
Termination Date had occurred at the relevant time in relation to all continuing
Designated Transactions;
“Swap Provider” means DnB NOR
Bank ASA, a company incorporated in Norway with its registered office at
Xxxxxxxx 00, X.X. Xxx 0000 Xxxxxxx, X-0000 Xxxx, Xxxxxx acting for the purposes
of this Agreement through its branch at 00 Xx. Xxxxxxx’x Xxxx, London EC3R 8HY,
England (or of such other address as may last have been notified to the other
parties to this Agreement pursuant to clause 17.1.3) and includes its successors
in title;
“Taxes” includes all present
and future taxes, levies, imposts, duties, fees or charges of whatever nature
together with interest thereon and penalties in respect thereof and “Taxation” shall be construed
accordingly;
“Termination Date” means 31
March 2008 or such later date as the Agent (acting on the instructions of all
the Banks) may in its absolute discretion agree in writing;
“Total Commitment” means, at
any relevant time, the total of the Commitments of all the Banks at such time as
reduced by any relevant term of this Agreement;
“Total Loss” in relation to a
Ship means:
|
|
(a)
|
actual,
constructive, compromised or arranged total loss of such Ship;
or
|
|
|
(b)
|
the
Compulsory Acquisition of such Ship;
or
|
|
|
(c)
|
the
hijacking, theft, condemnation, capture, seizure, arrest, detention or
confiscation of such Ship (other than where the same amounts to the
Compulsory Acquisition of such Ship) by any Government Entity, or by
persons acting or purporting to act on behalf of any Government Entity,
unless such Ship be released and restored to the relevant Borrower from
such hijacking, theft, condemnation, capture, seizure, arrest, detention
or confiscation within thirty (30) days after the occurrence
thereof;
|
“Transaction” has the meaning
given in the Master Swap Agreement;
“Transferee Bank” has the
meaning ascribed thereto in clause 15.3;
“Transferor Bank” has the
meaning ascribed thereto in clause 15.3;
“Transfer Certificate” means a
certificate in substantially the form set out in schedule 4;
“Trust Deed” means a trust deed
in the form, or substantially in the form, set out in schedule 5;
12
“Trust Property” means (i) the
security, powers, rights, titles, benefits and interests (both present and
future) constituted by and conferred on the Security Agent under or pursuant to
the Security Documents (including, without limitation, the benefit of all
covenants, undertakings, representations, warranties and obligations given, made
or undertaken to the Security Agent in the Security Documents), (ii) all moneys,
property and other assets paid or transferred to or vested in the Security Agent
or any agent of the Security Agent or any receiver or received or recovered by
the Security Agent or any agent of the Security Agent or any receiver pursuant
to, or in connection with, any of the Security Documents whether from any
Security Party or any other person and (iii) all money, investments, property
and other assets at any time representing or deriving from any of the foregoing,
including all interest, income and other sums at any time received or receivable
by the Security Agent or any agent of the Security Agent in respect of the same
(or any part thereof); and
“Underlying Documents” means,
together, the Management Agreements and the Contracts and “Underlying Document” means any
of them.
|
1.3
|
Headings
|
Clause headings
and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement.
|
1.4
|
Construction
of certain terms
|
In this
Agreement, unless the context otherwise requires:
|
1.4.1
|
references
to clauses and schedules are to be construed as references to
clauses of, and schedules to, this Agreement and references to
this Agreement include its
schedules;
|
|
1.4.2
|
references
to (or to any specified provision of) this Agreement or any other document
shall be construed as references to this Agreement, that provision or that
document as in force for the time being and as amended in accordance with
terms thereof, or, as the case may be, with the agreement of the relevant
parties;
|
|
1.4.3
|
references
to a “regulation”
include any present or future regulation, rule, directive, requirement,
request or guideline (whether or not having the force of law) of any
agency, authority, central bank or government department or any
self-regulatory or other national or supra-national
authority;
|
|
1.4.4
|
words
importing the plural shall include the singular and vice
versa;
|
|
1.4.5
|
references
to a time of day are to London
time;
|
|
1.4.6
|
references
to a person shall be construed as references to an individual, firm,
company, corporation, unincorporated body of persons or any Government
Entity;
|
|
1.4.7
|
references
to a “guarantee”
include references to an indemnity or other assurance against financial
loss including, without limitation, an obligation to purchase assets or
services as a consequence of a default by any other person to pay any
Indebtedness and “guaranteed” shall be
construed accordingly; and
|
|
1.4.8
|
references
to any enactment shall be deemed to include references to such enactment
as re-enacted, amended or extended.
|
13
|
1.5
|
Majority
Banks
|
Where
this Agreement provides for any matter to be determined by reference to the
opinion of the Majority Banks or to be subject to the consent or request of the
Majority Banks or for any action to be taken on the instructions in writing of
the Majority Banks, such opinion, consent, request or instructions shall (as
between the Banks) only be regarded as having been validly given or issued by
the Majority Banks if all the Banks shall have received prior notice of the
matter on which such opinion, consent, request or instructions are required to
be obtained and the relevant majority of Banks shall have given or issued such
opinion, consent, request or instructions but so that (as between the Borrowers
and the Creditors) the Borrowers shall be entitled (and bound) to assume that
such notice shall have been duly received by each Bank and that the relevant
majority shall have been obtained to constitute Majority Banks whether or not
this is in fact the case.
|
1.6
|
Banks’
Commitment
|
For the
purposes of the definition of “Majority Banks” in clause 1.2
and the relevant provisions of the Security Documents, references to the
Commitment of a Bank shall, if the Total Commitment has, at
any relevant time, been reduced to zero, be deemed to be a reference to the
Commitment of that Bank immediately prior to such reduction to
zero.
|
2
|
|
The
Total Commitment and the Advances
|
|
2.1
|
Agreement
to lend
|
The Banks, relying upon each of the representations and warranties in
clause 7, agree to lend to the Borrowers, jointly and
severally, in two (2) Advances upon and subject to the terms of this Agreement
the aggregate principal sum of up to One hundred and one million one hundred and
fifty thousand Dollars ($101,150,000). The obligation of each Bank
under this Agreement shall be to contribute that proportion of each Advance
which, as at the Drawdown Date of such Advance, such Bank’s Commitment bears to
the Total Commitment.
|
2.2
|
Obligations
several
|
The
obligations of the Banks under this Agreement are several according to their
respective Commitments and/or Contributions; the failure of any Bank to perform
such obligations or the failure of the Swap Provider to perform its obligations
under the Master Swap Agreement shall not relieve any other Creditor or the
Borrowers or either of them of any of their respective obligations or
liabilities under this Agreement or, as the case may be, the Master Swap
Agreement nor shall any Creditor be responsible for the obligations of any
Creditors (except for its own obligations, if any, as a Bank or Swap Provider)
under this Agreement or the Master Swap Agreement.
|
2.3
|
Interests
several
|
Notwithstanding
any other term of this Agreement (but without prejudice to the provisions of
this Agreement relating to or requiring action by the Majority Banks) the
interests of the Creditors are several and the amount due to any Creditor is a
separate and independent debt. Each Creditor shall have the right to
protect and enforce its rights arising out of this Agreement and it shall not be
necessary for any other Creditor to be joined as an additional party in any
proceedings for this purpose.
14
|
2.4
|
Drawdown
|
Subject
to the terms and conditions of this Agreement, each Advance shall be made to the
Borrowers following receipt by the Agent from the Borrowers of a Drawdown Notice
not later than 10:00 a.m. on the third Banking Day before the proposed Drawdown
Date which shall be a Banking Day falling within the Drawdown
Period. A Drawdown Notice shall be effective on actual receipt by the
Agent and, once given, shall, subject as provided in clause 3.6.1, be
irrevocable.
|
2.5
|
Timing
and limitation of Advances
|
|
2.5.1
|
The
aggregate of both Advances shall not exceed the Total
Commitment.
|
|
2.5.2
|
The
Saldanha Advance shall not exceed the lower of (a) Fifty two million five
hundred thousand Dollars ($52,500,000) and (b) seventy per cent (70%) of
the Saldanha Contract Price.
|
|
2.5.3
|
The
Avoca Advance shall not exceed the lower of (a) Forty eight million six
hundred and fifty thousand Dollars ($48,650,000) and (b) seventy per cent
(70%) of the Avoca Contract Price.
|
|
2.5.4
|
Each
Advance shall be made solely for the purpose of financing part of the
acquisition cost of the Ship relevant to such Advance pursuant to the
relevant Contract.
|
|
2.6
|
Availability
|
Upon
receipt of a Drawdown Notice complying with the terms of this Agreement the
Agent shall promptly notify each Bank and, subject to the provisions of
clause 9, on the Drawdown Date for the relevant Advance, each Bank shall
make available to the Agent its portion of such Advance for payment by the Agent
in accordance with clause 6.2. The Borrowers acknowledge that payment
of each Advance or part thereof to the relevant Seller, in accordance with
clause 6.2, shall satisfy the obligations of the Banks to lend such Advance or
part thereof to the Borrowers.
|
2.7
|
Termination
of Total Commitment
|
Any
part of the Total Commitment which remains undrawn and uncancelled by the
Termination Date shall thereupon be automatically cancelled.
|
2.8
|
Application
of proceeds
|
Without
prejudice to the Borrowers’ obligations under clause 8.1.3, none of the
Creditors shall have any responsibility for the application of the proceeds of
the Loan or part thereof by the Borrowers.
|
2.9
|
Derivative
transactions
|
|
2.9.1
|
If,
at any time during the Security Period, the Borrowers wish to enter into
interest rate swap or other derivative transactions so as to hedge all or
any part of their exposure under this Agreement to interest rate
fluctuations, they shall advise the Swap Provider in
writing.
|
|
2.9.2
|
Any
such swap or other derivative transaction shall be concluded with the Swap
Provider under the Master Swap Agreement provided however that no such
swap or other derivative transaction shall be concluded unless the Swap
Provider first agrees to it in writing. For the avoidance of
doubt, other than the Swap Provider’s agreement in writing referred to in
the preceding sentence no prior approval is required by the Borrowers from
any other Creditor before concluding any such transaction. If
and when any such swap or other derivative transaction has been concluded,
it shall constitute a Designated Transaction, and the Borrowers shall sign
a Confirmation with the Swap Provider and advise the Banks through the
Agent promptly after concluding any Designated
Transaction.
|
15
|
3
|
|
Interest
and Interest Periods
|
|
3.1
|
Normal
interest rate
|
|
3.1.1
|
General
|
The
Borrowers shall pay interest on each Advance in respect of each Interest Period
relating thereto on each Interest Payment Date (or, in the case of Interest
Periods of more than three (3) months, by instalments, the first instalment
three (3) months from the commencement of the Interest Period and the subsequent
instalments at intervals of three (3) months or, if shorter, the period from the
date of the preceding instalment until the Interest Payment Date relative to
such Interest Period) at the rate per annum determined by the Agent to be the
aggregate of (a) the Margin, (b) LIBOR for such Interest Period and (c)
Mandatory Cost (if any).
|
|
3.1.2
|
Calculation
of Margin
|
The
Agent shall, on or before each Margin Calculation Date (such Margin Calculation
Date for the purposes of this clause 3.1, the “calculation day”), calculate,
based on the then latest consolidated financial statements of the Group and the
Compliance Certificate delivered to it pursuant to clause 5.1 of the Corporate
Guarantee, the Equity Ratio in respect of the Measurement Period relevant to the
Margin Period commencing on such calculation day and, based on such calculation,
the Agent shall determine, and notify the Borrower and the Banks of, the Margin
that shall apply during the Margin Period commencing on such calculation
day.
|
3.2
|
Selection
of Interest Periods
|
The
Borrowers may by notice received by the Agent not later than 10:00 a.m. on the
third Banking Day before the beginning of each Interest Period specify whether
such Interest Period shall have a duration of one (1), three (3), six (6) or
twelve (12) months or such other period (shorter than twelve (12) months) as the
Borrowers may select and the Agent (acting on the instructions of the Majority
Banks) may agree.
|
3.3
|
Determination
of Interest Periods
|
Every
Interest Period shall be of the duration specified by the Borrowers pursuant to
clause 3.2 but so that:
|
3.3.1
|
the
initial Interest Period in respect of each Advance shall commence on the
Drawdown Date for such Advance and each subsequent Interest Period for
such Advance shall commence on the last day of the previous Interest
Period for such Advance;
|
|
3.3.2
|
the
initial Interest Period for the second Advance to be drawn down shall end
on the last day of the then current Interest Period for the first Advance
drawn down and, on such day, both drawn Advances shall be consolidated
into, and shall thereafter constitute the
Loan;
|
|
3.3.3
|
if
any Interest Period would otherwise overrun a Repayment Date, then, in the
case of the last Repayment Date, such Interest Period shall end on such
Repayment Date, and in the case of any other Repayment Date or Repayment
Dates, the Loan shall be divided into parts so that there is one part in
the amount of the repayment instalment due on each Repayment Date falling
during that Interest Period and having an Interest Period ending on the
relevant Repayment Date and another part in the amount of the balance of
the Loan having an Interest Period ascertained in accordance with
clause 3.2 and the other provisions of this clause 3.3;
and
|
16
|
3.3.4
|
if
the Borrowers fail to specify the duration of an Interest Period in
accordance with the provisions of clause 3.2 and this clause 3.3 such
Interest Period shall have a duration of three (3) months or such other
period as shall comply with this clause
3.3.
|
|
3.4
|
Default
interest
|
If the Borrowers or either of them fail
to pay any sum (including, without limitation, any sum payable pursuant to this
clause 3.4) on its due date for payment under any of the Security Documents
(except the Master Swap Agreement), the Borrowers shall pay interest on such sum
on demand from the due date up to the date of actual payment (as well after as
before judgment) at a rate determined by the Agent pursuant to this clause
3.4. The period beginning on such due date and ending on such date of
payment shall be divided into successive periods of not more than six (6) months
as selected by the Agent each of which (other than the first, which shall
commence on such due date) shall commence on the last day of the preceding such
period. The rate of interest applicable to each such period shall be
the aggregate (as determined by the Agent) of (a) two per cent (2%) per annum,
(b) the Margin, (c) LIBOR for such period and (d) the Mandatory Cost (if
any). Such interest shall be due and payable on the last day of each
such period as determined by the Agent and each such day shall, for the purposes
of this Agreement, be treated as an Interest Payment Date, provided that if such
unpaid sum is an amount of principal which became due and payable by reason of a
declaration by the Agent under clause
10.2.2 or a prepayment
pursuant to clauses 4.3, 8.2.1 or
12.1, on a
date other than an Interest Payment Date relating thereto, the first such period
selected by the Agent shall be of a duration equal to the period between the due
date of such principal sum and such Interest Payment Date and interest shall be
payable on such principal sum during such period at a rate of ) two per cent
(2%) above the rate applicable thereto immediately before it shall have become
so due and payable. If, for the reasons specified in clause
3.6.1, the
Agent is unable to determine a rate in accordance with the foregoing provisions
of this clause 3.4, each Bank shall
promptly notify the Agent of the cost of funds to such Bank and interest on any
sum not paid on its due date for payment shall be calculated at a rate determined by the Agent to be
) two per cent (2%) per annum above the aggregate of the Margin and the cost of
funds to such Bank (including Mandatory Costs, if
any).
|
3.5
|
Notification
of Interest Periods and interest
rate
|
The
Agent shall notify the Borrowers and the Banks promptly of the duration of each
Interest Period and of each rate of interest (or, as the case may be default
interest) determined by it under this clause 3.
|
3.6
|
Market
disruption; non-availability
|
|
3.6.1
|
If
and whenever, at any time prior to the commencement of any Interest
Period:
|
|
|
(a)
|
the
Agent shall have determined (which determination shall, in the absence of
manifest error, be conclusive) that adequate and fair means do not exist
for ascertaining LIBOR during such Interest Period;
or
|
|
|
(b)
|
where
applicable, none of the Reference Banks supplies the Agent with a
quotation for the purpose of calculating LIBOR;
or
|
|
|
(c)
|
the
Agent shall have received notification from Banks whose aggregate
Contributions are not less than one-third (1/3rd) of the Loan (or, prior
to the first Drawdown Date, whose aggregate Commitments are not less than
one-third (1/3rd) of the Total Commitment), that
deposits in Dollars are not available to such Banks in the London
Interbank Market in the ordinary course of business in sufficient amounts
to fund their Commitments or their Contributions for such Interest Period
or that LIBOR does not accurately reflect the cost to such Banks of
obtaining such deposits,
|
17
the
Agent shall forthwith give notice (a “Determination Notice”) thereof
to the Borrowers and to each of the Banks and the Swap Provider. A
Determination Notice shall contain particulars of the relevant circumstances
giving rise to its issue. After the giving of any Determination
Notice the undrawn amount of the Total Commitment shall not be borrowed until
notice to the contrary is given to the Borrowers by the Agent.
|
3.6.2
|
During
the period of ten (10) days after any Determination Notice has been given
by the Agent under clause 3.6.1, each Bank shall
certify an alternative basis (the “Alternative
Basis”) for funding its Commitment or for maintaining its
Contribution. The Alternative Basis may at the Bank’s sole and
unfettered discretion (without limitation) include alternative interest
periods, alternative currencies or alternative rates of interest but shall
include a margin above the cost of funds to such Bank equivalent to the
Margin. The Agent shall calculate the arithmetic mean of the
Alternative Basis provided by the relevant Banks (the “Substitute
Basis”) and certify the same to the Borrowers, the Banks and the
Swap Provider. The Substitute Basis so certified shall be
binding upon the Borrowers and shall take effect in accordance with its
terms from the date specified in the Determination Notice until such time
as the Agent notifies the Borrowers that none of the circumstances
specified in clause 3.6.1 continues to
exist whereupon the normal interest rate fixing provisions of this
Agreement shall
apply.
|
|
3.7
|
Reference
Bank quotations
|
If any
Reference Bank is unable or otherwise fails to furnish a quotation for the
purposes of calculating LIBOR, the interest rate shall be determined, subject to
clause 3.6, on the basis of quotations furnished by the other Reference Banks
(if any).
|
4
|
|
Repayment
and prepayment
|
|
4.1
|
Repayment
|
The
Borrowers shall repay the Loan by twenty eight (28) instalments, one such
instalment to be repaid on each of the Repayment Dates. Subject to
the provisions of this Agreement, the amount of each of the first to eighth
instalments (inclusive) shall be Three million one hundred and twenty five
thousand Dollars ($3,125,000), the amount of each of the ninth to twenty seventh
instalments (inclusive) shall be Two million two hundred thousand Dollars
($2,200,000) and the amount of the twenty eighth and final instalment shall be
Thirty four million three hundred and fifty thousand Dollars ($34,350,000)
(comprising a repayment instalment of Two million two hundred thousand Dollars
($2,200,000) and a balloon payment of Thirty two million one hundred and fifty
Dollars ($32,150,000) (such balloon payment, the “Balloon
Instalment”)).
If the
Total Commitment is not drawn down in full, the amount of each repayment
instalment (including the relevant Balloon Instalment) shall be reduced
proportionately.
|
4.2
|
Voluntary
prepayment
|
The
Borrowers may prepay the Loan in whole or part (being One million Dollars or any
larger sum which is an integral multiple of One million Dollars), on any
Interest Payment Date relating to the part of the Loan to be prepaid without
premium or penalty.
|
4.3
|
Cancellation
of Commitments and prepayment on Total Loss
|
|
4.3.1
|
Before
drawdown
|
On a
Ship becoming a Total Loss (or suffering damage or being involved in an incident
which in the opinion of the Agent may result in such Ship being subsequently
determined to be a Total Loss) before the Advance in respect of such Ship is
drawn down, the obligations of the Banks to make such Advance available shall
immediately cease and the Total Commitment shall be reduced by the amount of
such Advance.
18
|
4.3.2
|
Thereafter
|
On the
date one hundred and twenty (120) days after that on which a Mortgaged Ship
became a Total Loss or, if earlier, on the date upon which the insurance
proceeds in respect of such Total Loss are, or Requisition Compensation (as
defined in the relevant Ship Security Documents) is, received by the relevant
Borrower (or the Security Agent pursuant to the relevant Ship Security
Documents), the Borrowers shall prepay such part of the Loan as is equal to the
Relevant Amount.
|
4.3.3
|
Relevant
Amount
|
For the
purposes of clause 4.3.2, “Relevant Amount” means, at any
relevant time and in relation to a Mortgaged Ship which has become a Total Loss
or is sold:
|
|
(a)
|
50%
of the Loan, if there is another Mortgaged Ship at that time;
or
|
|
|
(b)
|
100%
of the Loan, if there is no other Mortgaged Ship at that
time.
|
|
4.3.4
|
Total
Loss
|
For the
purpose of this Agreement, a Total Loss shall be deemed to have
occurred:
|
|
(a)
|
in
the case of an actual total loss of a Ship, on the actual date and at the
time such Ship was lost or, if such date is not known, on the date on
which such Ship was last reported;
|
|
|
(b)
|
in
the case of a constructive total loss of a Ship, upon the date and at the
time notice of abandonment of such Ship is given to the insurers of such
Ship for the time being;
|
|
|
(c)
|
in
the case of a compromised or arranged total loss of a Ship, on the date
upon which a binding agreement as to such compromised or arranged total
loss has been entered into by the insurers of such
Ship;
|
|
|
(d)
|
in
the case of Compulsory Acquisition, on the date upon which the relevant
requisition of title or other compulsory acquisition occurs;
and
|
|
|
(e)
|
in
the case of hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of a Ship (other than where the same amounts to
Compulsory Acquisition of such Ship) by any Government Entity, or by
persons purporting to act on behalf of any Government Entity, which
deprives the relevant Borrower of the use of such Ship for more than
thirty (30) days, upon the expiry of the period of thirty (30) days after
the date upon which the relevant hijacking, theft, condemnation, capture,
seizure, arrest, detention or confiscation
occurred.
|
|
4.4
|
Amounts
payable on prepayment
|
Any
prepayment of all or part of the Loan under this Agreement shall be made
together with:
|
|
(a)
|
accrued
interest on the amount to be prepaid to the date of such
prepayment;
|
|
|
(b)
|
any
additional amount payable under clauses 6.6 or
12.2;
and
|
|
|
(c)
|
all
other sums payable by the Borrowers to the Creditors under this Agreement
or any of the other Security Documents including, without limitation, any
amounts payable under
clause 11.1.
|
19
|
4.5
|
Notice
of prepayment; reduction of repayment
instalments
|
No prepayment
may be effected under clause 4.2 unless the Borrowers
shall have given the Agent at least three (3) Banking Days’ prior written notice
of their intention to make such prepayment. Every notice of
prepayment shall be effective only on actual receipt by the Agent, shall be
irrevocable, shall specify the amount to be prepaid and shall oblige the
Borrowers to make such prepayment on the date specified. No amount
prepaid under this Agreement may be re-borrowed. Any amount prepaid
pursuant to clauses 4.2, 4.3 or 8.2.1 shall be applied in reducing the repayment
instalments under clause 4.1 (including the Balloon Instalment)
proportionately. The Borrowers may not prepay the Loan or any part
thereof save as expressly provided in this Agreement.
|
4.6
|
Unwinding of Designated
Transactions
|
On or
prior to any repayment or prepayment of all or part of the Loan (including,
without limitation, pursuant to clauses 4.2, 4.3 or 8.2.1), the Borrowers shall
upon the request of the Swap Provider wholly or partially reverse, offset,
unwind, cancel, close out, net out 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 as reducing from time to time thereafter pursuant to clause
4.1.
|
5
|
Fees
and expenses
|
|
5.1
|
Fees
|
The
Borrowers shall pay to the Agent:
|
5.1.1
|
for
the account of the Arranger, on the date of this Agreement, an
underwriting fee of such amount as is specified in the Fee
Letter;
|
|
5.1.2
|
if
more than one Bank becomes a party to this Agreement as a Transferee Bank
at any time, for the account of the Agent on the date when each such
Transferee Bank becomes a party hereto and at twelve (12) monthly
intervals thereafter, until all moneys owing under the Security Documents
have been repaid in full, an annual agency fee in respect of each such
Transferee Bank, of such amount per annum as is specified in the Fee
Letter; and
|
|
5.1.3
|
for
the account of each Bank pro rata in accordance with its Commitment, on
each of the dates falling at three (3) monthly intervals after the date of
this Agreement until the last day of the last Drawdown Period and on such
day, commitment commission computed from the date of this Agreement (in
the case of the first payment of commission) and from the due date of the
preceding payment of commission (in the case of each subsequent payment),
at the rate of zero point four zero per cent (0.40%) per annum on the
daily undrawn amount of the Total
Commitment.
|
The
fees referred to in clauses 5.1.1 and 5.1.2 and the commission referred to in
clause 5.1.3 shall be payable by the Borrowers, whether or not any part of the
Total Commitment is ever advanced and shall be non-refundable.
|
5.2
|
Expenses
|
The
Borrowers shall pay to the Agent on a full indemnity basis on demand all
expenses (including legal, printing and out-of-pocket expenses) incurred by the
Creditors or any of them:
|
5.2.1
|
in
connection with the negotiation, preparation, execution and, where
relevant, registration of the Security Documents and of any amendment or
extension of or the granting of any waiver or consent under, any of the
Security Documents and the syndication of the Loan;
and
|
20
|
5.2.2
|
in
contemplation of, or otherwise in connection with, the enforcement of, or
preservation of any rights under, any of the Security Documents, or
otherwise in respect of the moneys owing under any of the Security
Documents,
|
together with
interest at the rate referred to in clause 3.4 from the date on which
such expenses were incurred to the date of payment (as well after as before
judgment).
|
5.3
|
Value
added tax
|
All
fees and expenses payable pursuant to this clause 5 and/or pursuant to the
Security Documents shall be paid together with value added tax or any similar
tax (if any) properly chargeable thereon. Any value added tax
chargeable in respect of any services supplied by the Creditors or any of them
under this Agreement shall, on delivery of the value added tax invoice, be paid
in addition to any sum agreed to be paid hereunder.
|
5.4
|
Stamp
and other duties
|
The
Borrowers shall pay all stamp, documentary, registration or other like duties or
taxes (including any duties or taxes payable by, or assessed on, the Creditors
or any of them) imposed on or in connection with any of the Underlying
Documents, the Security Documents or the Loan and shall indemnify the Creditors
or any of them against any liability arising by reason of any delay or omission
by the Borrowers to pay such duties or taxes.
|
6
|
Payments
and taxes; accounts and
calculations
|
|
6.1
|
No
set-off or counterclaim
|
The Borrowers
acknowledge that in performing their respective obligations under this
Agreement, the Banks will be incurring liabilities to third parties in relation
to the funding of amounts to the Borrowers, such liabilities matching the
liabilities of the Borrowers to the Banks and that it is reasonable for the
Banks to be entitled to receive payments from the Borrowers gross on the due
date in order that each of the Banks is put in a position to perform its
matching obligations to the relevant third parties. All payments to
be made by the Borrowers under any of the Security Documents shall be made in
full, without any set-off or counterclaim whatsoever and, subject as provided in
clause 6.6,
free and clear of any deductions or withholdings, in Dollars on the due date to
such account at such bank and in such place as the Agent may from time to time
specify for this purpose. Save for payments which are for the account
of the Swap Provider and save as otherwise provided in this Agreement or any
relevant Security Documents such payments shall be for the account of all Banks
and the Agent or, as the case may be, the Security Agent shall distribute such
payments in like funds as are received by the Agent or, as the case may be, the
Security Agent to the Banks rateably in accordance with their respective
Commitment or (if after the first drawdown) Contribution, as the case may
be.
|
6.2
|
Payment
by the Banks
|
All
sums to be advanced by the Banks to the Borrowers under this Agreement shall be
remitted in Dollars on the Drawdown Date for the relevant Advance to the account
of the Agent at such bank as the Agent may have notified to the Banks and shall
be paid by the Agent to the account of the relevant Seller specified in the
Drawdown Notice for such Advance.
|
6.3
|
Non-Banking
Days
|
When
any payment under any of the Security Documents would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended to the
next following Banking Day unless such Banking Day falls in the next calendar
month in which case payment shall be made on the immediately preceding Banking
Day.
21
|
6.4
|
Calculations
|
All
interest and other payments of an annual nature under any of the Security
Documents shall accrue from day to day and be calculated on the basis of actual
days elapsed and a three hundred and sixty (360) day year.
|
6.5
|
Certificates
conclusive
|
Any
certificate or determination of the Agent or the Security Agent or any Bank or
the Swap Provider as to any rate of interest or any other amount pursuant to and
for the purposes of any of the Security Documents shall, in the absence of
manifest error, be conclusive and binding on the Borrowers and (in the case of a
certificate or determination by the Agent or the Security Agent) on the other
Creditors.
|
6.6
|
Grossing-up
for Taxes
|
|
6.6.1
|
If
at any time the Borrowers are required to make any deduction or
withholding in respect of Taxes from any payment due under any of the
Security Documents for the account of any Creditor (or if the Agent or, as
the case may be, the Security Agent is required to make any such deduction
or withholding from a payment to a Bank), the sum due from the Borrowers
in respect of such payment shall be increased to the extent necessary to
ensure that, after the making of such deduction or withholding, the
relevant Creditor receives on the due date for such payment (and retains,
free from any liability in respect of such deduction or withholding), a
net sum equal to the sum which it would have received had no such
deduction or withholding been required to be made and the Borrowers shall
indemnify each Creditor against any losses or costs incurred by it by
reason of any failure of the Borrowers to make any such deduction or
withholding or by reason of any increased payment not being made on the
due date for such payment. The Borrowers shall promptly deliver
to the Agent any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or
withholding as aforesaid.
|
|
6.6.2
|
For
the avoidance of doubt, clause 6.6.1 does not apply in respect of sums due
from the Borrowers to the Swap Provider under or in connection with the
Master Swap Agreement as to which sums the provisions of section 2(d)
(Deduction or Withholding for Tax) of the Master Swap Agreement shall
apply.
|
|
6.7
|
Loan
account
|
Each
Bank shall maintain, in accordance with its usual practice, an account
evidencing the amounts from time to time lent by, owing to and paid to it under
the Security Documents. The Security Agent shall maintain a control account
(which shall be the account current referred to in each Mortgage) showing the
Loan, interest and other sums owing and/or payable by the Borrowers under the
Security Documents. The control account shall, in the absence of
manifest error, be conclusive as to the amount from time to time owing by the
Borrowers under the Security Documents.
|
6.8
|
Agent
may assume receipt
|
Where
any sum is to be paid under this Agreement to the Agent for the account of
another person, the Agent may assume that the payment will be made when due and
may (but shall not be obliged to) make such sum available to the person so
entitled. If it proves to be the case that such payment was not made
to the Agent, then the person to whom such sum was so made available shall on
request refund such sum to the Agent together with interest thereon sufficient
to compensate the Agent for the cost of making available such sum up to the date
of such repayment and the person by whom such sum was payable shall indemnify
the Agent for any and all loss or expense which the Agent may sustain or incur
as a consequence of such sum not having been paid on its due date.
22
|
6.9
|
Partial
payments
|
If, on
any date on which a payment is due to be made by the Borrowers under any of the
Security Documents, the amount received by the Agent from the Borrowers falls
short of the total amount of the payment due to be made by the Borrowers on such
date then, without prejudice to any rights or remedies available to the
Creditors or any of them under the Security Documents, the Agent shall apply the
amount actually received from the Borrowers in or towards discharge of the
obligations of the Borrowers under the Security Documents in the following
order, notwithstanding any appropriation made, or purported to be made, by the
Borrowers:
|
6.9.1
|
firstly,
in or towards payment, on a pro rata basis, of any unpaid costs and
expenses of the Agent and the Security Agent under, or in relation to, the
Security Documents;
|
|
6.9.2
|
secondly,
in or towards payment of any fees payable to the Agent or any other
Creditor under, or in relation to, the Security Documents which remain
unpaid;
|
|
6.9.3
|
thirdly,
in or towards payment to the Banks, on a pro rata basis, of any accrued
interest which shall have become due under any of the Security Documents
but remains unpaid;
|
|
6.9.4
|
fourthly,
in or towards payment to the Banks, on a pro rata basis, of any principal
in respect of the Loan which shall have become due but remains unpaid;
|
|
6.9.5
|
fifthly,
in or towards payment to any Bank for any loss suffered by reason of any
payment in respect of principal not being effected on an Interest Payment
Date relating to the part of the Loan repaid and which amounts are so
payable under this Agreement;
|
|
6.9.6
|
sixthly,
in or towards payment to the Swap Provider of any amounts owing to it
under the Master Swap Agreement;
and
|
|
6.9.7
|
seventhly,
in or towards payment to the relevant person of any other sum which shall
have become due under any of the Security Documents but remains unpaid
(and, if more than one such sum so remains unpaid, on a pro rata
basis).
|
The
order of application set out in this clause 6.9.3 to 6.9.7 may be varied by
the Agent if the Majority Banks so direct, without any reference to, or consent
or approval from, the Borrowers.
|
7
|
Representations
and warranties
|
|
7.1
|
Continuing
representations and warranties
|
The
Borrowers jointly and severally represent and warrant to each Creditor
that:
|
7.1.1
|
Due
incorporation
|
the
Borrowers and each of the other Security Parties are duly incorporated and
validly existing in good standing under the laws of their respective countries
of incorporation as limited liabilities companies or (as the case may be)
corporations, and have power to carry on their respective businesses as they are
now being conducted and to own their respective property and other
assets;
23
|
7.1.2
|
Corporate
power
|
each of
the Borrowers has power to execute, deliver and perform its obligations under
the Underlying Documents and the Borrowers' Security Documents to which it is or
is to be a party and to borrow the Total Commitment and each of the other
Security Parties has power to execute and deliver and perform its obligations
under the Security Documents and the Underlying Documents to which it is or is
to be a party; all necessary corporate, shareholder and other action has been
taken to authorise the execution, delivery and performance of the same and no
limitation on the powers of either Borrower to borrow will be exceeded as a
result of borrowing the Loan;
|
7.1.3
|
Binding
obligations
|
the
Security Documents constitute or will, when executed, constitute valid and
legally binding obligations of the relevant Security Parties enforceable in
accordance with their respective terms;
|
7.1.4
|
No
conflict with other obligations
|
the
execution and delivery of, the performance of their obligations under, and
compliance with the provisions of, the Underlying Documents and the Security
Documents by the relevant Security Parties will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment, decree or permit to
which either of the Borrowers or any other Security Party is subject, (ii)
conflict with, or result in any breach of any of the terms of, or constitute a
default under, any agreement or other instrument to which either of the
Borrowers or any other Security Party is a party or is subject or by which it or
any of its property is bound, (iii) contravene or conflict with any provision of
the constitutional documents of either of the Borrowers or any other Security
Party or (iv) result in the creation or imposition of or oblige either of the
Borrowers or any other member of the Group or any other Security Party to create
any Encumbrance (other than a Permitted Encumbrance) on any of the undertakings,
assets, rights or revenues of either of the Borrowers or any other member of the
Group or any other Security Party;
|
7.1.5
|
No
litigation
|
no
litigation, arbitration or administrative proceeding is taking place, pending
or, to the knowledge of the officers of either of the Borrowers, threatened
against either of the Borrowers or any other member of the Group or any other
Security Party which could have a material adverse effect on the business,
assets, management prospects, performance, operations, results of operations,
properties or the condition (financial or otherwise) of either of the Borrowers
or any other member of the Group or any other Security Party or the Group as a
whole;
|
7.1.6
|
No
filings required
|
save
for the registration of the Mortgages under the laws of the Flag State through
the Registry, it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of any of the Underlying Documents
or the Security Documents that they or any other instrument be notarised, filed,
recorded, registered or enrolled in any court, public office or elsewhere in any
Relevant Jurisdiction or that any stamp, registration or similar tax or charge
be paid in any Relevant Jurisdiction on or in relation to any of the Underlying
Documents or the Security Documents and each of the Underlying Documents and the
Security Documents is in proper form for its enforcement in the courts of each
Relevant Jurisdiction;
24
|
7.1.7
|
Choice
of law
|
the
choice of English law to govern the Underlying Documents and the Security
Documents (other than the Mortgages) and the choice of Maltese law to govern the
Mortgages, and the submissions by the Security Parties therein to the
non-exclusive jurisdiction of the English courts are valid and
binding;
|
7.1.8
|
No
immunity
|
neither
of the Borrowers nor any other Security Party nor any of their respective assets
is entitled to immunity on the grounds of sovereignty or otherwise from any
legal action or proceeding (which shall include, without limitation, suit,
attachment prior to judgement, execution or other enforcement);
|
Consents
obtained
|
every
consent, authorisation, licence or approval of, or registration with or
declaration to, governmental or public bodies or authorities or courts required
by any Security Party to authorise, or required by any Security Party in
connection with, the execution, delivery, validity, enforceability or
admissibility in evidence of each of the Underlying Documents and each of the
Security Documents to which it is a party or the performance by each Security
Party of its obligations under the Security Documents to which it is a party,
respectively, has been obtained or made and is in full force and effect and
there has been no default in the observance of any of the conditions or
restrictions (if any) imposed in, or in connection with, any of the
same;
|
7.1.10
|
Financial
statements correct and complete
|
the
unaudited consolidated financial statements of the Group in respect of the
financial half-year ended on 30 September 2007 as delivered to the Agent, have
been prepared in accordance with the Applicable Accounting Principles which have
been consistently applied and present fairly and accurately the consolidated
financial position of the Group as at the date they were prepared and the
consolidated results of the operations of the Group for the financial period
ended on such date and, as at such date no member of the Group had any
significant liabilities (contingent or otherwise) or any unrealised or
anticipated losses which are not disclosed by, or reserved against or provided
for in, such financial statements;
|
7.1.11
|
Compliance
with laws and regulations
|
each of
the Borrowers is in compliance with the terms and conditions of all laws,
regulations, agreements, licences and concessions material to the carrying on of
its business (including in relation to Taxation); and
|
7.1.12
|
No
material adverse change
|
there
has been no material adverse change in the business, management, assets,
operations, results of operations, properties, performance, prospects or the
condition (financial or otherwise) of any of the Borrowers or the Manager or the
Corporate Guarantor or the Group as a whole from that existing on the date of
this Agreement as described by or on behalf of the Borrowers and/or any other
Security Party to the Agent and/or the Arranger in the negotiation of this
Agreement.
25
|
7.2
|
Initial
representations and warranties
|
The
Borrowers jointly and severally further represent and warrant to each Creditor
that:
|
7.2.1
|
Pari
passu
|
the
obligations of each Borrower under this Agreement are direct, general and
unconditional obligations of such Borrower and rank at least pari passu with all
other present and future unsecured and unsubordinated Indebtedness of such
Borrower with the exception of any obligations which are mandatorily preferred
by law and not by contract;
|
7.2.2
|
No
default under other Indebtedness
|
neither
of the Borrowers nor any other member of the Group nor any other Security Party
is (nor would with the giving of notice or lapse of time or the satisfaction of
any other condition or combination thereof be) in breach of or in default under
any agreement relating to Indebtedness to which it is a party or by which it may
be bound;
|
7.2.3
|
Information
|
the
information, exhibits and reports furnished by any Security Party to the Agent
and/or the Arranger in connection with the negotiation and preparation of the
Security Documents are true and accurate in all material respects and not
misleading, do not omit material facts and all reasonable enquiries have been
made to verify the facts and statements contained therein; there are no other
facts the omission of which would make any fact or statement therein
misleading;
|
7.2.4
|
No
withholding Taxes
|
no
Taxes are imposed by withholding or otherwise on any payment to be made by any
Security Party under the Underlying Documents or the Security Documents or are
imposed on or by virtue of the execution or delivery by the Security Parties of
the Underlying Documents or the Security Documents or any other document or
instrument to be executed or delivered under any of the Security
Documents;
|
7.2.5
|
No
Default
|
no
Default has occurred and is continuing;
|
7.2.6
|
The
Ships
|
each
Ship will, on the Drawdown Date of the Advance relevant to such Ship,
be:
|
|
(a)
|
in
the absolute ownership of the relevant Borrower who will, on and after
such Drawdown Date, be the sole, legal and beneficial owner of such
Ship;
|
|
|
(b)
|
permanently
registered through the Registry as a ship under the laws and flag of the
relevant Flag State;
|
|
|
(c)
|
operationally
seaworthy and in every way fit for service;
and
|
|
|
(d)
|
classed
with the relevant Classification free of all requirements and
recommendations of the relevant Classification
Society;
|
26
|
7.2.7
|
Ships'
employment
|
neither
Ship is nor will, on or before the Drawdown Date of the Advance relevant to such
Ship, be subject to any charter or contract or to any agreement to enter into
any charter or contract which, if entered into after the date of the relevant
Ship Security Documents, would have required the consent of the Agent or, as the
context may require, the Security Agent and on or before the Drawdown Date of
the Advance relevant to such Ship, there will not be any agreement or
arrangement whereby the Earnings (as defined in the Deed of Covenant for such
Ship) of such Ship may be shared with any other person;
|
7.2.8
|
Freedom
from Encumbrances
|
neither
of the Ships, nor its Earnings, Insurances or Requisition Compensation (each as
defined in the relevant Ship Security Documents) nor the Operating Account for
such Ship nor any other properties or rights which are, or are to be, the
subject of any of the Security Documents nor any part thereof will be, on the
Drawdown Date of the Advance relevant to such Ship, subject to any
Encumbrance;
|
7.2.9
|
Compliance
with Environmental Laws and
Approvals
|
except
as may already have been disclosed by the Borrowers in writing to, and
acknowledged in writing by, the Agent:
|
|
(a)
|
the
Borrowers and the other Relevant Parties and, to the best of the
Borrowers' knowledge and belief (having made due enquiry), their
respective Environmental Affiliates have complied with the provisions of
all Environmental Laws;
|
|
|
(b)
|
the
Borrowers and the other Relevant Parties and, to the best of the
Borrowers' knowledge and belief (having made due enquiry), their
respective Environmental Affiliates have obtained all Environmental
Approvals and are in compliance with all such Environmental Approvals;
and
|
|
|
(c)
|
neither
the Borrowers nor any other Relevant Party nor, to the best of the
Borrowers' knowledge and belief (having made due enquiry), any of their
respective Environmental Affiliates have received notice of any
Environmental Claim that the Borrowers or any other Relevant Party or any
such Environmental Affiliate is not in compliance with any Environmental
Law or any Environmental Approval;
|
|
7.2.10
|
No
Environmental Claims
|
except
as may already have been disclosed by the Borrowers in writing to, and
acknowledged in writing by, the Agent, there is no Environmental Claim pending
or, to the best of the Borrowers' knowledge and belief, threatened against the
Borrowers or either of the Ships or any other Relevant Party or any other
Relevant Ship or, to the best of the Borrowers' knowledge and belief (having
made due enquiry), any of their respective Environmental
Affiliates;
|
7.2.11
|
No
potential Environmental Claims
|
except
as may already have been disclosed by the Borrowers in writing to, and
acknowledged in writing by, the Agent, there has been no emission, spill,
release or discharge of a Pollutant from either of the Ships or any other
Relevant Ship owned by, managed or crewed by or chartered to the Borrowers nor,
to the best of the Borrowers' knowledge and belief (having made due enquiry),
from any Relevant Ship owned by, managed or crewed by or chartered to any other
Relevant Party which could give rise to an Environmental Claim;
27
|
7.2.12
|
Copies
true and complete
|
the copies of
the Underlying Documents delivered or to be delivered to the Agent pursuant to
clause 9.1 are or will, when delivered, be true and complete copies of such
documents; such documents constitute valid and binding obligations of the
parties thereto enforceable in accordance with their terms and there have been
no amendments or variations thereof or defaults thereunder;
and
|
7.2.13
|
Shareholdings
|
|
|
(a)
|
each
of the Borrowers is a wholly-owned direct Subsidiary of the Corporate
Guarantor and all of the issued shares in the Manager are legally and
ultimately beneficially owned by the person or persons disclosed by or on
behalf of the Borrowers or any other Security Party to the Agent and/or
the Arranger in the negotiation of this
Agreement;
|
|
|
(b)
|
no
less than 30% of the total issued voting share capital of the Corporate
Guarantor is ultimately beneficially owned by Mr Xxxxxx Xxxxxxxx and/or
family trusts and/or foundations of which Mr Xxxxxx Xxxxxxxx is a
beneficiary; and
|
|
|
(c)
|
no
person or persons acting in concert (other than Mr Xxxxxx Xxxxxxxx and/or
family trusts or foundations of Mr Xxxxxx Xxxxxxxx) are the ultimate
beneficial owners of more than 50% of the total issued voting share
capital of the Corporate Guarantor or have the control of the Corporate
Guarantor or of its board of directors (and “control” shall have the
meaning given to it in the definition of “Subsidiary” in clause
1.2).
|
|
7.3
|
Repetition
of representations and warranties
|
On and as of
each Drawdown Date and (except in relation to the representations and warranties
in clause 7.2) on each Interest Payment Date, the Borrowers shall (a) be
deemed to repeat the representations and warranties in clauses 7.1 and 7.2 as if made
with reference to the facts and circumstances existing on such day and (b) be
deemed to further represent and warrant to each of the Creditors that the then
latest financial statements delivered to the Agent by the Borrowers (if any)
under clause 8.1.5 have been prepared in accordance with the Applicable
Accounting Principles which have been consistently applied and present fairly
and accurately the consolidated financial position of the Group, as at the end
of the financial period to which the same relate and the consolidated results of
the operations of the Group, for the financial period to which the same relate
and, as at the end of such financial period, neither the Corporate Guarantor nor
any other member of the Group had any significant liabilities (contingent or
otherwise) or any unrealised or anticipated losses which are not disclosed by,
or reserved against or provided for in, such financial
statements.
|
8
|
Undertakings
|
|
8.1
|
General
|
The
Borrowers jointly and severally undertake with each Creditor that, from the date
of this Agreement and so long as any moneys are owing under any of the Security
Documents and while all or any part of the Total Commitment remains outstanding,
they will:
|
8.1.1
|
Notice
of Default
|
promptly
inform the Agent of any occurrence of which either of them becomes aware which
might adversely affect the ability of any Security Party to perform its
obligations under any of the Security Documents and, without limiting the
generality of the foregoing, will inform the Agent of any Default forthwith upon
becoming aware thereof and will from time to time, if so requested by the Agent,
confirm to the Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is continuing;
28
|
8.1.2
|
|
Consents
and licences
|
without
prejudice to clauses 7.1 and 9, obtain or cause to be obtained, maintain in full force and effect and
comply in all material respects with the conditions and restrictions (if any)
imposed in, or in connection with, every consent, authorisation, licence or
approval of governmental or public bodies or authorities or courts and do, or
cause to be done, all other acts and things which may from time to time be
necessary or desirable under applicable law for the continued due performance of
all the obligations of the Security Parties under each of the Security
Documents;
|
8.1.3
|
Use
of proceeds
|
use the Loan
or, as the case may be, the Advances for their benefit and under their full
responsibility and exclusively for the purposes specified in clauses
1.1 and
2.5;
|
8.1.4
|
Pari
passu and subordination
|
|
|
(a)
|
ensure
that their obligations under this Agreement shall, without prejudice to
the provisions of clause 8.3 and the security intended to be created by
the Security Documents, at all times rank at least pari passu with all
their other present and future unsecured and unsubordinated Indebtedness
with the exception of any obligations which are mandatorily preferred by
law and not by contract; and
|
|
|
(b)
|
ensure
that the obligations (if any) of the Borrowers to repay any loan advanced
to them by their shareholders or any other member of the Group are at all
times fully subordinated towards their obligations to the Creditors under
this Agreement and the other Security Documents and that any such loans or
advances are and remain at all times on terms and conditions acceptable to
the Banks in all respects;
|
|
8.1.5
|
Financial
statements and valuations
|
|
|
(a)
|
prepare
or cause to be prepared consolidated financial statements of the Group in
accordance with the Applicable Accounting Principles consistently applied
in respect of each financial year (but commencing with the financial year
ending 31 December 2007) and cause the same to be reported on by their
auditors and prepare unaudited consolidated financial statements of the
Group on the same basis as the annual statements in respect of each
financial quarter (including on a year to date basis) period (but
commencing with the financial quarter period ending 30 September 2007) and
deliver as many copies of the same as the Agent may reasonably require as
soon as practicable but not later than one hundred and eighty (180) days
(in the case of audited financial statements) or ninety (90) days (in the
case of unaudited financial statements) after the end of the financial
period to which they relate;
|
|
|
(b)
|
deliver
or cause to be delivered to the Agent a valuation (dated not earlier than
30 days previously) of each Fleet Vessel (as defined in the Corporate
Guarantee) prepared in accordance with, and in the manner specified in,
clause 8.2.2 (at the expense of the Borrowers) at the time when any
audited annual and unaudited nine-monthly consolidated financial
statements of the Group are delivered to the Agent in accordance with
clause 8.1.5(a) and clause 5.1 of the Corporate Guarantee;
and
|
|
|
(c)
|
deliver
to the Agent in sufficient copies for all the Banks, a Compliance
Certificate for the relevant period executed by the Corporate Guarantor
and counter-signed by the Chief Financial Officer or an authorised
Director or other Officer of the Corporate Guarantor at the time when any
unaudited or audited consolidated financial statements of the Group
delivered to the Agent in accordance with clause 8.1.5(a) and clause 5.1
of the Corporate Guarantee;
|
29
|
8.1.6
|
Delivery
of reports
|
deliver
to the Agent sufficient copies for all the Banks of every report, circular,
notice or like document issued by the Borrowers or any member of the Group to
its shareholders or creditors generally, at the same time if is issued or
given;
|
8.1.7
|
Provision
of further information
|
provide
the Agent with such financial and other information concerning the Borrowers,
the other Security Parties, any other member of the Group, the Group as a whole
and their respective affairs as the Agent may from time to time reasonably
require, including, without limitation, regarding their financial standing,
commitments, operations, vessel sales or purchases, any new borrowings, any
material litigation, arbitration and administrative proceedings and all major
financial developments in relation to each Security Party, any other member of
the Group and the Group as a whole;
|
8.1.8
|
Know
your customer information
|
deliver
to the Agent such documents and evidence as the Agent shall from time to time
require relating to the verification of identity and knowledge of the Agent’s or
any Bank’s or the Swap Provider’s customers and the compliance by the
Agent or any Bank or the Swap Provider with all necessary “know your customer”
or similar checks, always on the basis of applicable laws and regulations or the
Agent's or any Bank’s or any Swap Provider’s own internal guidelines, in each
case as such laws, regulations or internal guidelines apply from time to
time;
|
8.1.9
|
Obligations
under Security Documents
|
and
will procure that each of the other Security Parties will, duly and punctually
perform each of the obligations expressed to be assumed by them under the
Security Documents;
|
8.1.10
|
Compliance
with Code
|
and
will procure that the Manager or any Operator will, comply with and ensure that
each Ship and the Manager or any Operator at all times complies with the
requirements of the Code, including (but not limited to) the maintenance and
renewal of valid certificates pursuant thereto throughout the Security Period
(as defined in the Deeds of Covenant) and will procure that each member of the
Group and each vessel thereof complies with the requirements of the
Code;
|
8.1.11
|
Withdrawal
of DOC and SMC
|
and
will procure that the Manager or any Operator will, immediately inform the Agent
if there is any threatened or actual withdrawal of its Operator’s DOC or the SMC
in respect of any Ship;
|
8.1.12
|
Issuance
of DOC and SMC
|
and
will procure that the Manager or any Operator will, promptly inform the Agent
upon the issue to either of the Borrowers, the Manager or any Operator of a DOC
and to each Ship of an SMC or the receipt by either of the Borrowers, the
Manager or any Operator of notification that its application for the same has
been refused;
|
8.1.13
|
ISPS
Code Compliance
|
and
will procure that the Manager or any Operator will:
|
|
(a)
|
maintain
at all times a valid and current ISSC respect of each
Ship;
|
30
|
|
(b)
|
immediately
notify the Agent in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the ISSC in respect of each
Ship; and
|
|
|
(c)
|
procure
that each Ship and any other vessel of the Group will comply at all times
with the ISPS Code;
|
|
8.1.14
|
Charters
|
advise
the Agent promptly of any charter of either Ship having a term of twelve (12)
months or more (including any options to extend or renew) and (i) forthwith
after its execution deliver a certified copy of each such charter to the Agent,
(ii) forthwith following demand by the Agent execute a specific assignment (in
such form as the Agent may require) of any such charter in favour of the
Security Agent and any notice of assignment required in connection therewith and
promptly procure the service of any such notice of assignment on the relevant
charterer and the acknowledgement of such notice by the relevant charterer and
(iii) pay all legal and other costs incurred by the Agent or any other Creditor
in connection with any such specific charter assignments; and
|
8.1.15
|
Intra-Group
transactions
|
ensure
that any transactions, agreements or other arrangements (if any) entered into by
it with any members of the Group, are entered into on an arm’s length basis and
for full value and consideration.
|
8.2
|
Security
value maintenance
|
|
8.2.1
|
Security
shortfall
|
If at
any time the Security Value shall be equal to or less than the Security
Requirement, the Agent (acting on the instructions of the Majority Banks) shall
give notice to the Borrowers requiring that such deficiency be remedied and then
the Borrowers shall either:
|
|
(a)
|
prepay
within a period of ten (10) days of the date of receipt by the Borrowers
of the Agent's said notice, such sum in Dollars as will result in the
Security Requirement after such prepayment (taking into account any other
repayment made between the date of the notice and the date of such
prepayment) being higher than the Security Value;
or
|
|
|
(b)
|
within
ten (10) days of the date of receipt by the Borrowers of the Agent's said
notice constitute to the satisfaction of the Agent such further security
for the Loan as shall be acceptable to the Banks, having a value for
security purposes (as determined by the Agent in its absolute discretion)
at the date upon which such further security shall be constituted which,
when added to the Security Value, shall not be higher than the Security
Requirement as at such date.
|
The provisions
of clause 4.4 and any relevant provisions of clause 4.5 shall apply to
prepayments made under clause 8.2.1(a).
|
8.2.2
|
Valuation
of Mortgaged Ships
|
Each of
the Mortgaged Ships shall, for the purposes of this Agreement, be valued in
Dollars as and when the Agent (acting on instructions of the Majority Banks)
shall require by one of the Approved Shipbrokers nominated by the Borrowers (or,
failing this, by the Agent) and appointed by the Agent and the Borrowers. Each
such valuation shall be addressed to the Agent and made without, unless required
by the Agent, physical inspection and on the basis of a sale for prompt delivery
for cash at arm’s length on normal commercial terms as between a willing buyer
and a willing seller without taking into account the benefit of any charterparty
or other engagement concerning such Mortgaged Ship. Such valuation shall
constitute the value of such Mortgaged Ship for the purposes of this clause
8.2.
31
The
value of each Mortgaged Ship determined in accordance with the provisions of
this clause 8.2 shall be binding upon the parties hereto until such time as
any such further valuation shall be obtained.
|
8.2.3
|
|
Information
|
The
Borrowers jointly and severally undertake with each Creditor to supply to the
Agent and to any such Approved Shipbrokers such information concerning each
Mortgaged Ship and its condition as such Approved Shipbroker may require for the
purpose of making any such valuation.
|
8.2.4
|
|
Costs
|
All costs in
connection with the Agent obtaining any valuation of the Mortgaged Ships
referred to in clause 8.2.2, any valuation of the Fleet Vessels referred to
in clause 8.1.5(b), the valuations of the Ships referred to in schedule 3, and
any valuation either of any additional security for the purposes of ascertaining
the Security Value at any time or necessitated by the Borrowers electing to
constitute additional security pursuant to clause 8.2.1(b), shall be borne by the
Borrowers.
|
8.2.5
|
Valuation
of additional security
|
For the
purpose of this clause 8.2, the market value of any additional security
provided or to be provided to the Security Agent shall be determined by the
Agent in its absolute discretion without any necessity for the Agent assigning
any reason thereto.
|
8.2.6
|
Documents
and evidence
|
In
connection with any additional security provided in accordance with this
clause 8.2, the Agent shall be entitled to receive such evidence and
documents of the kind referred to in schedule 3 as may in the Agent's
opinion be appropriate and such favourable legal opinions as the Agent shall in
its absolute discretion require.
|
8.3
|
Negative
undertakings
|
The
Borrowers jointly and severally undertake with each Creditor that, from the date
of this Agreement and so long as any moneys are owing under the Security
Documents and while all or any part of the Total Commitment remains outstanding,
the Borrowers will not, without the prior written consent of the
Agent:
|
8.3.1
|
Negative
pledge
|
permit
any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or be
created or extended over all or any part of their present or future
undertakings, assets, rights or revenues to secure or prefer any present or
future Indebtedness or other liability or obligation of any Security Party
(other than the Corporate Guarantor) or any other person;
|
8.3.2
|
No
merger
|
merge
or consolidate with any other person or enter into any demerger, amalgamation or
corporate reconstruction or redomiciliation of any type;
32
|
8.3.3
|
|
Disposals
|
sell,
transfer, abandon, lend or otherwise dispose of or cease to exercise direct
control over any part (being, either alone or when aggregated with all other
disposals falling to be taken into account pursuant to this clause 8.3.3,
material in the opinion of the Agent in relation to their respective
undertakings, assets, rights and revenues taken as a whole) of their respective
present or future undertakings, assets, rights or revenues (otherwise than by
transfers, sales or disposals for full consideration in the ordinary course of
trading but in any event exclusively the Ships) whether by one or a series of
transactions related or not;
|
8.3.4
|
|
Other
business
|
undertake
any business other than the ownership, chartering and operation of the Ships and
the chartering of the Ships to third parties;
|
8.3.5
|
|
Acquisitions
|
acquire
any further assets other than the Ships and rights arising under contracts
entered into by or on behalf of the Borrowers in the ordinary course of their
businesses of owning, operating and chartering the Ships;
|
8.3.6
|
Other
obligations
|
incur
any obligations except for obligations arising under the Underlying Documents or
the Security Documents or contracts entered into in the ordinary course of their
business of owning, operating and chartering the Ships;
|
8.3.7
|
No
borrowing
|
incur
any Borrowed Money except for Borrowed Money pursuant to the Security
Documents;
|
8.3.8
|
Repayment
of borrowings
|
repay
or prepay the principal of, or pay interest on or any other sum in connection
with, any of their Borrowed Money except for Borrowed Money pursuant to the
Security Documents;
|
8.3.9
|
Guarantees
|
issue
any guarantees or indemnities or otherwise become directly or contingently
liable for the obligations of any person, firm, or corporation except pursuant
to the Security Documents and except for guarantees or indemnities from time to
time required in the ordinary course by any protection and indemnity or war
risks association with which a Ship is entered, guarantees required to procure
the release of a Ship from any arrest, detention, attachment or levy or
guarantees or undertakings required for the salvage of a Ship;
|
8.3.10
|
Loans
|
make
any loans or grant any credit (save for normal trade credit in the ordinary
course of business) to any person or agree to do so;
|
8.3.11
|
Sureties
|
permit
any Indebtedness of either Borrower to any person (other than the Creditors) to
be guaranteed by any person (save for guarantees or indemnities from time to
time required in the ordinary course by any protection and indemnity or war
risks association with which a Ship is entered, guarantees required to procure
the release of a Ship from any arrest, detention, attachment or levy or
guarantees or undertakings required for the salvage of a Ship);
33
|
8.3.12
|
Share
capital and distribution
|
purchase
or otherwise acquire for value any shares of their capital or declare or pay any
dividends or distribute any of their present or future assets, undertakings,
rights or revenues to any of their shareholders Provided
however that each Borrower may declare or pay dividends to the Corporate
Guarantor, if no Event of Default has occurred and is continuing at the time of
declaration or payment of such dividends or would occur as a result
thereof;
|
8.3.13
|
Change
of management of a Ship
|
appoint
any person to carry out the commercial and technical management of the Ship
other than the Manager or terminate a Management Agreement or vary or amend the
terms thereof;
|
8.3.14
|
Designated
Transactions
|
enter
into any derivative transactions other than Designated Transactions;
or
|
8.3.15
|
Subsidiaries
|
form or
acquire any Subsidiaries; or
|
8.3.16
|
Financial
year, auditors and constitutional
documents
|
|
|
(a)
|
change,
cause, permit or agree to any change in, the way of computation of their
financial year;
|
|
|
(b)
|
change,
permit or agree to any change of, their auditors from those existing on
the date of this Agreement; or
|
|
|
(c)
|
change,
amend or vary, or agree to or permit any change, amendment or variation of
or to, their constitutional
documents.
|
|
9
|
Conditions
|
|
9.1
|
Documents
and evidence
|
The
obligation of each Bank to make its Commitment available shall be subject to the
condition that:
|
9.1.1
|
the
Agent, or its duly authorised representative, shall have received, not
later than the day on which the Drawdown Notice for the first Advance is
given, the documents and evidence specified in Part 1 of schedule 3
in form and substance satisfactory to the Agent;
and
|
|
9.1.2
|
the
Agent, or its duly authorised representative, shall have received, on or
prior to the drawdown of each Advance, the documents and evidence
specified in Part 2 of schedule 3 in respect of such Advance and the
Ship relevant to it, in form and substance satisfactory to the
Agent.
|
|
9.2
|
General
conditions precedent
|
The
obligation of each Bank to contribute to either Advance shall be subject to the
further conditions that, at the time of the giving of the Drawdown Notice for
such Advance, and at the time of the making of such Advance:
|
9.2.1
|
the
representations and warranties contained in (a) clauses 7.1, 7.2 and 7.3(b) and
(b) clause 4 of the Corporate Guarantee, are true and correct on and as of
each such time as if each was made with respect to the facts and
circumstances existing at such time;
and
|
34
|
9.2.2
|
no
Default shall have occurred and be continuing or would result from the
making of such Advance.
|
|
9.3
|
Waiver
of conditions precedent
|
The conditions
specified in this clause 9 are inserted solely
for the benefit of the Banks and may be waived by the Agent (acting on the
instructions of the Majority Banks) in whole or in part and with or without
conditions.
|
9.4
|
Further
conditions precedent
|
Not later than
five (5) Banking Days prior to each Drawdown Date and not later than five (5)
Banking Days prior to each Interest Payment Date, the Agent (acting on the
instructions of the Majority Banks) may request and the Borrowers shall, not
later than two (2) Banking Days prior to such date, deliver to the Agent on such
request further favourable certificates and/or favourable opinions as to any or
all of the matters which are the subject of clauses 7, 8, 9 and 10.
|
10
|
Events
of Default
|
|
10.1
|
Events
|
There
shall be an Event of Default if:
|
10.1.1
|
Non-payment:
any Security Party fails to pay any sum payable by it under any of the
Security Documents at the time, in the currency and in the manner
stipulated in the Security Documents (and so that, for this purpose, sums
payable on demand shall be treated as having been paid at the stipulated
time if paid within three (3) Banking Days of demand);
or
|
|
10.1.2
|
Master
Swap Agreement: (a) an Event of Default or Potential Event of
Default (in each case as defined in the Master Swap Agreement) has
occurred and is continuing with the Borrowers or either of them as the
Defaulting Party (as defined in the Master Swap Agreement) under the
Master Swap Agreement or (b) an Early Termination Date has occurred or
been or become capable of being effectively designated under the Master
Swap Agreement by the Swap Provider or (c) the Master Swap Agreement is
terminated, cancelled, suspended, rescinded or revoked or otherwise ceases
to remain in full force and effect for any reason;
or
|
|
10.1.3
|
Breach
of Insurance and certain other obligations: either of the Borrowers
or, as the context may require, the Manager fails to obtain and/or
maintain the Insurances (as defined in, and in accordance with the
requirements of, the Ship Security Documents) for either of the Mortgaged
Ships or if any insurer in respect of such Insurances cancels such
Insurances or disclaims liability by reason, in either case, of
mis-statement in any proposal for such Insurances or for any other failure
or default on the part of either of the Borrowers or any other person or
either of the Borrowers commits any breach of or omits to observe any of
the obligations or undertakings expressed to be assumed by them under
clauses 8.1.5, 8.2 or 8.3 or the Corporate Guarantor commits any breach or
fails to observe any of the obligations or undertakings expressed to be
assured by it under clauses 5.1.4, 5.2 or 5.3 of the Corporate Guarantee;
or
|
|
10.1.4
|
Breach
of other obligations: any Security Party commits any breach of or
omits to observe any of its obligations or undertakings expressed to be
assumed by it under any of the Security Documents (other than those
referred to in clauses 10.1.1 and 10.1.3
above) and, in respect of any such breach or omission which in the opinion
of the Agent (following consultation with the Banks) is capable of remedy,
such action as the Agent (acting on the instructions of the Majority
Banks) may require shall not have been taken within thirty (30) days of
the Agent notifying the relevant Security Party of such default and of
such required action;
or
|
35
|
10.1.5
|
Misrepresentation:
any representation or warranty made or deemed to be made or repeated by or
in respect of any Security Party in or pursuant to any of the Security
Documents or in any notice, certificate or statement referred to in or
delivered under any of the Security Documents is or proves to have been
incorrect or misleading in any material respect;
or
|
|
10.1.6
|
Cross-default:
any Indebtedness of any Security Party or any other member of the Group is
not paid when due or any Indebtedness of any Security Party or any other
member of the Group becomes (whether by declaration or automatically in
accordance with the relevant agreement or instrument constituting the
same) due and payable prior to the date when it would otherwise have
become due (unless as a result of the exercise by the relevant Security
Party or any other member of the Group of a voluntary right of
prepayment), or any creditor of any Security Party or any other member of
the Group becomes entitled to declare any such Indebtedness due and
payable or any facility or commitment available to any Security Party or
other member of the Group relating to Indebtedness is withdrawn, suspended
or cancelled by reason of any default (however described) of the person
concerned unless the relevant Security Party or any other member of the
Group shall have satisfied the Agent that such withdrawal, suspension or
cancellation will not affect or prejudice in any way the ability of the
relevant Security Party or of the relevant member of the Group to pay its
debts as they fall due and fund its commitments, or any guarantee given by
any Security Party or any other member of the Group in respect of
Indebtedness is not honoured when due and called upon and, in the case of
the Corporate Guarantor only and/or any other member of the Group which is
not a Security Party, the amount or aggregate amount at any one time of
all Indebtedness of the Corporate Guarantor and/or such other member of
the Group, in relation to which any of the foregoing events shall have
occurred is equal to or greater than Three million Dollars ($3,000,000) or
its equivalent in the currency in which same is denominated and payable;
or
|
|
10.1.7
|
Legal
process: any judgment or order made against any Security Party or
other member of the Group is not stayed or complied with within fifteen
(15) days or a creditor attaches or takes possession of, or a distress,
execution, sequestration or other process is levied or enforced upon or
sued out against, any of the undertakings, assets, rights or revenues of
any Security Party or other member of the Group and is not discharged
within fifteen (15) days;
or
|
|
10.1.8
|
Insolvency:
any Security Party or other member of the Group is unable or admits
inability to pay its debts as they fall due; suspends making payments on
any of its debts or announces an intention to do so; becomes insolvent;
has assets the value of which is less than the value of its liabilities
(taking into account contingent and prospective liabilities); or suffers
the declaration of a moratorium in respect of any of its Indebtedness;
or
|
|
10.1.9
|
Reduction
or loss of capital: a meeting is convened by any Security Party or
other member of the Group for the purpose of passing any resolution to
purchase, reduce or redeem any of its share capital;
or
|
|
10.1.10
|
Winding
up: any corporate action, legal proceedings or other procedure or
step is taken for the purpose of winding-up any Security Party or other
member of the Group or an order is made or resolution passed for the
winding up of any Security Party or other member of the Group or a notice
is issued convening a meeting for the purpose of passing any such
resolution; or
|
|
10.1.11
|
Administration:
any petition is presented, notice given or other step is taken for the
purpose of the appointment of an administrator of any Security Party or
other member of the Group or the Agent believes that any such petition or
other step is imminent or an administration order is made in relation to
any Security Party or other member of the Group;
or
|
|
10.1.12
|
Appointment
of receivers and managers: any administrative or other receiver is
appointed of any Security Party or other member of the Group or any part
of its assets and/or undertaking or any other steps are taken to enforce
any Encumbrance over all or any part of the assets of any Security Party
or other member of the Group;
or
|
36
|
10.1.13
|
Compositions:
any corporate action, legal proceedings or other procedures or steps are
taken, or negotiations commenced, by any Security Party or other member of
the Group or by any of its creditors with a view to the general
readjustment or rescheduling of all or part of its indebtedness or to
proposing any kind of composition, compromise or arrangement involving
such person and any of its creditors;
or
|
|
10.1.14
|
Analogous
proceedings: there occurs, in relation to any Security Party or
other member of the Group, in any country or territory in which any of
them carries on business or to the jurisdiction of whose courts any part
of their assets is subject, any event which, in the reasonable opinion of
the Agent, appears in that country or territory to correspond with, or
have an effect equivalent or similar to, any of those mentioned in
clauses 10.1.7 to 10.1.13 (inclusive) or any Security Party or other
member of the Group otherwise becomes subject, in any such country or
territory, to the operation of any law relating to insolvency, bankruptcy
or liquidation; or
|
|
10.1.15
|
Cessation
of business: any Security Party or any other member of the Group
suspends or ceases or threatens to suspend or cease to carry on its
business; or
|
|
10.1.16
|
Seizure:
all or a material part of the undertaking, assets, rights or revenues of,
or shares or other ownership interests in, any Security Party or any other
member of the Group are seized, nationalised, expropriated or compulsorily
acquired by or under the authority of any government;
or
|
|
10.1.17
|
Invalidity:
any of the Security Documents shall at any time and for any reason become
invalid or unenforceable or otherwise cease to remain in full force and
effect, or if the validity or enforceability of any of the Security
Documents shall at any time and for any reason be contested by any
Security Party which is a party thereto, or if any such Security Party
shall deny that it has any, or any further, liability thereunder;
or
|
|
10.1.18
|
Unlawfulness:
it becomes impossible or unlawful at any time for any Security Party, to
fulfil any of the covenants and obligations expressed to be assumed by it
in any of the Security Documents or for a Creditor to exercise the rights
or any of them vested in it under any of the Security Documents or
otherwise; or
|
|
10.1.19
|
Repudiation:
any Security Party repudiates any of the Security Documents or does or
causes or permits to be done any act or thing evidencing an intention to
repudiate any of the Security Documents;
or
|
|
10.1.20
|
Encumbrances
enforceable: any Encumbrance (other than Permitted Liens) in
respect of any of the property (or part thereof) which is the subject of
any of the Security Documents becomes enforceable;
or
|
|
10.1.21
|
De-listing
etc.: the shares of the Corporate Guarantor are de-listed from or
suspended from trading on, or cease to trade (whether permanently or
temporarily for longer than ten (10) consecutive days) on, NASDAQ at any
time, unless at that time they trade on another comparable stock exchange
acceptable to the Agent in its sole discretion;
or
|
|
10.1.22
|
Material
adverse change: there occurs, in the opinion of the Agent, a
material adverse change in the business, management, assets, operations,
results of operations, properties, performances, prospects or the
condition (financial or otherwise) of either Borrower or any other
Security Party or any other member of the Group from that existing on the
date of this Agreement, as described by or on behalf of the Borrowers or
any other Security Party to the Agent and/or the Arranger in the
negotiation of this Agreement which in the reasonable opinion of the Agent
(following consultation with the Banks) is likely, materially and
adversely, to affect the ability of any Security Party to perform all or
any of its obligations under, or otherwise to comply with the terms of,
any of the Security Documents;
or
|
37
|
10.1.23
|
Arrest:
either Ship is arrested, confiscated, seized, taken in execution,
impounded, forfeited, detained in exercise or purported exercise of any
possessory lien or other claim or otherwise taken from the possession of
the relevant Borrower and such Borrower shall fail to procure the release
of such Ship within a period of ten (10) days thereafter;
or
|
|
10.1.24
|
Registration:
the registration of either Ship under the laws and flag of the relevant
Flag State is cancelled or terminated without the prior written consent of
the Agent (acting on the instructions of the Majority Banks) or if such
registration of such Ship is not renewed at least thirty (30) days prior
to the expiry of such registration;
or
|
|
10.1.25
|
Unrest:
the Flag State of either Ship becomes involved in hostilities or civil war
or there is a seizure of power in the Flag State of either Ship by
unconstitutional means if, in any such case such event could in the
opinion of the Agent reasonably be expected to have a material adverse
effect on the security constituted by any of the Security Documents;
or
|
|
10.1.26
|
Environment:
either Borrower and/or any other Relevant Party and/or any of their
respective Environmental Affiliates fails to comply with any Environmental
Law or any Environmental Approval or either of the Ships or any other
Relevant Ship is involved in any incident which gives rise or may give
rise to an Environmental Claim;
or
|
|
10.1.27
|
P&I:
either Borrower or any other person fails or omits to comply with any
requirements of the protection and indemnity association or other insurer
with which such Borrower’s Ship is entered for insurance or insured
against protection and indemnity risks (including oil pollution risks) to
the effect that any cover (including, without limitation, any cover in
respect of liability for Environmental Claims arising in jurisdictions
where such Ship operates or trades) is or may be liable to cancellation,
qualification or exclusion at any time;
or
|
|
10.1.28
|
Shareholdings:
there is any change in the legal and/or ultimate beneficial ownership of
any of the shares in any of the Borrowers, the Corporate Guarantor, the
Manager or any of them such
that:
|
|
|
(a)
|
either of the
Borrower ceases to be a wholly-owned direct Subsidiary of the Corporate
Guarantor; or
|
|
|
(b)
|
all of the
shares of the Manager cease to be ultimately beneficially owned by the
person or persons being the ultimate beneficial owners of all such shares
on the date of this Agreement, as disclosed to the Agent pursuant to
clause 7.2.13; or
|
|
|
(c)
|
any person or
persons acting in concert (other than Mr Xxxxxx Xxxxxxxx and/or family
trusts and/or foundations of which Mr Xxxxxx Xxxxxxxx is a beneficiary)
become the ultimate beneficial owners of more than 50% of the total issued
voting share capital of the Corporate Guarantor or have the control of the
Corporate Guarantor or of its board of directors at any relevant time (and
“control”
shall have the meaning given to it in the definition of “Subsidiary” in
clause 1.2); or
|
|
10.1.29
|
Accounts:
moneys are withdrawn from either of the Operating Accounts other than in
accordance with clause 14 or as otherwise
provided in this Agreement;
or
|
|
10.1.30
|
Manager:
either Ship ceases to be managed by the Manager;
or
|
|
10.1.31
|
Licenses,
etc: any license, authorisation, consent or approval at
any time necessary to enable any Security Party to comply with its
obligations under the Security Documents is revoked or withheld or
modified or is otherwise not granted or fails to remain in full force and
effect or if any exchange control or other law or regulation shall exist
which would make any transaction under the Security Documents or the
continuation thereof, unlawful or would prevent the performance by any
Security Party of any term of any of the Security Documents;
or
|
38
|
10.1.32
|
Material
events: any other event occurs or circumstance arises which, in the
reasonable opinion of the Agent (following consultation with the Banks),
is likely materially and adversely to affect either (a) the ability of any
Security Party to perform all or any of its obligations under or otherwise
to comply with the terms of any of the Security Documents or (b) the
security created by any of the Security
Documents.
|
|
10.2
|
Acceleration
|
The
Agent may, and if so requested by the Majority Banks shall, without prejudice to
any other rights of the Banks, at any time after the happening of an Event of
Default by notice to the Borrowers declare that:
|
10.2.1
|
the
obligation of each Bank to make its Commitment available shall be
terminated, whereupon the Total Commitment shall be reduced to zero
forthwith; and/or
|
|
10.2.2
|
the
Loan and all interest and commitment commission accrued and all other sums
payable under the Security Documents have become due and payable,
whereupon the same shall, immediately or in accordance with the terms of
such notice, become due and
payable.
|
|
10.3
|
Demand
basis
|
If, pursuant
to clause 10.2.2, the Agent declares the Loan to be due and payable on demand, the Agent
may (and if so instructed by the Majority Banks shall) by written notice to the
Borrowers (a) call for repayment of the Loan on such date as may be specified
whereupon the Loan shall become due and payable on the date so specified
together with all interest and commitment commission accrued and all other sums
payable under this Agreement or (b) withdraw such declaration with effect from
the date specified in such notice.
|
10.4
|
Position
of Swap Provider
|
Neither
the Agent nor the Security Agent shall be obliged, in connection with any action
taken or proposed to be taken under or pursuant to the foregoing provisions of
this clause 10, to have any regard to the requirements of the Swap Provider
except to the extent that the Swap Provider is also a Bank.
|
11
|
Indemnities
|
|
11.1
|
Miscellaneous
indemnities
|
The
Borrowers shall on demand indemnify each Creditor, without prejudice to any of
such Creditor's other rights under any of the Security Documents, against any
loss (including loss of Margin) or expense which such Creditor shall certify as
sustained or incurred by it as a consequence of:
|
11.1.1
|
any
default in payment of any sum under any of the Security Documents when
due;
|
|
11.1.2
|
the
occurrence of any other Event of
Default;
|
|
11.1.3
|
any
prepayment of the Loan or part thereof being made under clauses 4.2,
4.3, 4.4,
8.2.1 or 12.1, or any other
repayment or prepayment of the Loan or part thereof being made otherwise
than on an Interest Payment Date relating to the part of the Loan prepaid
or repaid; or
|
|
11.1.4
|
either
Advance not being made for any reason (excluding any default by any
Creditor) after the Drawdown Notice for such Advance has been
given,
|
39
including,
in any such case, but not limited to, any loss or expense sustained or incurred
by the relevant Creditor in maintaining or funding its Contribution or, as the
case may be, Commitment or any part thereof or in liquidating or re-employing
deposits from third parties acquired to effect or maintain its Contribution or,
as the case may be, Commitment or any part thereof or any other amount owing to
such Creditor.
|
11.2
|
Currency
indemnity
|
If any
sum due from the Borrowers or either of them under any of the Security Documents
or any order or judgment given or made in relation thereto has to be converted
from the currency (the “first
currency”) in which the same is payable under the relevant Security
Document or under such order or judgment into another currency (the “second currency”) for the
purpose of (a) making or filing a claim or proof against the Borrowers or either
of them, (b) obtaining an order or judgment in any court or other tribunal or
(c) enforcing any order or judgment given or made in relation to any of the
Security Documents, the Borrowers shall indemnify and hold harmless each
Creditor from and against any loss suffered as a result of any difference
between (i) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii) the rate or
rates of exchange at which the relevant Creditor may in the ordinary course of
business purchase the first currency with the second currency upon receipt of a
sum paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof.
Any amount due
from the Borrowers under this clause 11.2 shall 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 any of the Security Documents and the term
“rate
of exchange” includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
|
11.3
|
Environmental
indemnity
|
The
Borrowers shall indemnify each Creditor on demand and hold it harmless from and
against all costs, expenses, payments, charges, losses, demands, liabilities,
actions, proceedings (whether civil or criminal), penalties, fines, damages,
judgements, orders, sanctions or other outgoings of whatever nature which may be
suffered, incurred or paid by, or made or asserted against such Creditor at any
time, whether before or after the repayment in full of principal and interest
under this Agreement, relating to, or arising directly or indirectly in any
manner or for any cause or reason whatsoever out of an Environmental Claim made
or asserted against such Creditor if such Environmental Claim would not have
been, or been capable of being, made or asserted against such Creditor if it had
not entered into any of the Security Documents and/or exercised any of its
rights, powers and discretions thereby conferred and/or performed any of its
obligations thereunder and/or been involved in any of the transactions
contemplated by the Security Documents.
|
12
|
Unlawfulness
and increased costs
|
|
12.1
|
Unlawfulness
|
If it
is or becomes contrary to any law or regulation for any Bank to contribute to an
Advance or to maintain its Commitment or fund its Contribution, such Bank shall
promptly, through the Agent, give notice to the Borrowers whereupon (a) such
Bank’s Commitment shall be reduced to zero and (b) the Borrowers shall be
obliged to prepay such Bank’s Contribution either (i) forthwith or (ii) on a
future specified date not being earlier than the latest date permitted by the
relevant law or regulation together with interest accrued to the date of
prepayment and all other sums payable by the Borrowers under this Agreement
and/or the Master Swap Agreement.
40
|
12.2
|
Increased
costs
|
If the
result of any change in, or in the interpretation or application of, or the
introduction of, any law or any regulation, request or requirement (whether or
not having the force of law, but, if not having the force of law, with which a
Bank or, as the case may be, its holding company habitually complies), including
(without limitation) those relating to Taxation, capital adequacy, liquidity,
reserve assets, cash ratio deposits and special deposits, is to:
|
12.2.1
|
subject
any Bank to Taxes or change the basis of Taxation of any Bank with respect
to any payment under any of the Security Documents (other than Taxes or
Taxation on the overall net income, profits or gains of such Bank imposed
in the jurisdiction in which its principal or lending office under this
Agreement is located); and/or
|
|
12.2.2
|
increase
the cost to, or impose an additional cost on, any Bank or its holding
company in making or keeping such Bank’s Commitment available or
maintaining or funding all or part of such Bank’s Contribution;
and/or
|
|
12.2.3
|
reduce
the amount payable or the effective return to any Bank under any of the
Security Documents; and/or
|
|
12.2.4
|
reduce
any Bank's or its holding company's rate of return on its overall capital
by reason of a change in the manner in which it is required to allocate
capital resources to such Bank's obligations under any of the Security
Documents; and/or
|
|
12.2.5
|
require
any Bank or its holding company to make a payment or forego a return on or
calculated by reference to any amount received or receivable by such Bank
under any of the Security Documents;
and/or
|
|
12.2.6
|
require
any Bank or its holding company to incur or sustain a loss (including a
loss of future potential profits) by reason of being obliged to deduct all
or part of its Commitment or the Loan from its capital for regulatory
purposes,
|
then and in each such case (subject to clause 12.3):
|
|
(a)
|
such
Bank shall (through the Agent) notify the Borrowers in writing of such
event promptly upon its becoming aware of the same;
and
|
|
|
(b)
|
the
Borrowers shall on demand made at any time whether or not such Bank’s
Contribution has been repaid, pay to the Agent for the account of such
Bank the amount which such Bank specifies (in a certificate setting forth
the basis of the computation of such amount but not including any matters
which such Bank or its holding company regards as confidential) is
required to compensate such Bank and/or (as the case may be) its holding
company for such liability to Taxes, cost, reduction, payment , forgone
return or loss.
|
For the
purposes of this clause 12.2 “holding
company” means, in relation to a Bank, the company or entity (if any)
within the consolidated supervision of which such Bank is
included.
|
12.3
|
Exception
|
Nothing in clause 12.2 shall entitle any Bank to
receive any amount in respect of compensation for any such liability to Taxes,
increased or additional cost, reduction, payment, foregone return or loss to the
extent that the same is the subject of an additional payment under clause
6.6.
41
|
13
|
Security,
set-off and pro-rata payments
|
|
13.1
|
Application
of moneys
|
All moneys
received by the Agent and/or the Security Agent under or pursuant to any of the
Security Documents and expressed to be applicable in accordance with the
provisions of this clause 13.1 shall be applied in
the following manner:
|
13.1.1
|
first,
in or towards payment of all unpaid costs and expenses which may be owing
to the Creditors or any of them under any of the Security
Documents;
|
|
13.1.2
|
secondly,
in or towards payment of any unpaid fees payable to the Creditors or any
of them;
|
|
13.1.3
|
thirdly,
in or towards payment of any arrears of interest owing in respect of the
Loan or any part thereof;
|
|
13.1.4
|
fourthly,
in or towards repayment of the Loan (whether the same is due and payable
or not);
|
|
13.1.5
|
fifthly,
in or towards payment to any Bank for any loss suffered by reason of any
such payment in respect of principal not being effected on an Interest
Payment Date relating to the part of the Loan repaid or prepaid and which
amounts are so payable under this
Agreement;
|
|
13.1.6
|
sixthly,
in or towards payment to the Swap Provider of any amounts owing to it
under the Master Swap Agreement;
|
|
13.1.7
|
seventhly,
in or towards payment to any Creditor of any other sums owing to it under
any of the Security Documents; and
|
|
13.1.8
|
eighthly,
the surplus (if any) shall be paid to the Borrowers or to whomsoever else
may be entitled to receive such
surplus.
|
|
13.2
|
Pro
rata payments
|
|
13.2.1
|
If at
any time any Bank (the “Recovering
Bank”) receives or recovers any amount owing to it by the Borrowers
under this Agreement by direct payment, set-off or in any manner other
than by payment through the Agent pursuant to clauses 6.1 or 6.9 (not
being a payment received from a Transferee Bank or a sub-participant in
such Bank’s Contribution or any other payment of an amount due to the
Recovering Bank for its sole account pursuant to clauses 3.6, 5, 6.6, 11.1, 11.2, 12.1 or
12.2) the
Recovering Bank shall, within two (2) Banking Days of such receipt or
recovery (a “Relevant
Receipt”) notify the Agent of the amount of the Relevant Receipt.
If the Relevant Receipt exceeds the amount which the Recovering Bank would
have received if the Relevant Receipt had been received by the Agent and
distributed pursuant to clauses 6.1 or
6.9 (as the case may be)
then:
|
|
|
(a)
|
within
two (2) Banking Days of demand by the Agent, the Recovering Bank shall pay
to the Agent an amount equal (or equivalent) to the
excess;
|
|
|
(b)
|
the
Agent shall treat the excess amount so paid by the Recovering Bank as if
it were a payment made by the Borrowers and shall distribute the same to
the Banks (other than the Recovering Bank) in accordance with clause
6.9;
and
|
|
|
(c)
|
as
between the Borrowers and the Recovering Bank the excess amount so
re-distributed shall be treated as not having been paid but the
obligations of the Borrowers to the other Banks shall, to the extent of
the amount so re-distributed to them, be treated as
discharged.
|
42
|
13.2.2
|
If
any part of the Relevant Receipt subsequently has to be wholly or partly
refunded by the Recovering Bank (whether to a liquidator or otherwise)
each Bank to which any part of such Relevant Receipt was so re-distributed
shall on request from the Recovering Bank repay to the Recovering Bank
such Bank’s pro-rata share of the amount which has to be refunded by the
Recovering Bank.
|
|
13.2.3
|
Each
Bank shall on request supply to the Agent such information as the Agent
may from time to time request for the purpose of this
clause 13.2.
|
|
13.2.4
|
Notwithstanding
the foregoing provisions of this clause 13.2, no Recovering Bank
shall be obliged to share any Relevant Receipt which it receives or
recovers pursuant to legal proceedings taken by it to recover any sums
owing to it under this Agreement with any other party which has a legal
right to, but does not, either join in such proceedings or commence and
diligently pursue separate proceedings to enforce its rights in the same
or another court (unless the proceedings instituted by the Recovering Bank
are instituted by it without prior notice having been given to such party
through the Agent).
|
|
13.3
|
Set-off
|
|
13.3.1
|
Each
Borrower authorises each Creditor (without prejudice to any of such
Creditor’s rights at law, in equity or otherwise), at any time and without
notice to such Borrower, to apply any credit balance to which such
Borrower is then entitled standing upon any account of such Borrower with
any branch of such Creditor in or towards satisfaction of any sum due and
payable from such Borrower to such Creditor under any of the Security
Documents. For this purpose, each Creditor 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.
|
|
13.3.2
|
No
Creditor shall be obliged to exercise any right given to it by this
clause 13.2. Each Creditor shall notify the Agent and the
relevant Borrower forthwith upon the exercise or purported exercise of any
right of set-off giving full details in relation thereto and the Agent
shall inform the other Creditors.
|
|
13.4
|
No
release
|
For the
avoidance of doubt it is hereby declared that failure by any Recovering Bank to
comply with the provisions of clause 13.2 shall not release any other
Recovering Bank from any of its obligations or liabilities under
clause 13.2.
|
13.5
|
No
charge
|
The provisions
of this clause 13 shall not, and shall not be construed so as to, constitute a
charge or other security interest by a Creditor over all or any part of a sum
received or recovered by it in the circumstances mentioned in
clause 13.2.
|
13.6
|
Further
assurance
|
The
Borrowers jointly and severally undertake that the Security Documents shall both
at the date of execution and delivery thereof and so long as any moneys are
owing under any of the Security Documents be valid and binding obligations of
the respective parties thereto and rights of each Creditor enforceable in
accordance with their respective terms and that they will, at their expense,
execute, sign, perfect and do, and will procure the execution, signing,
perfecting and doing by each of the other Security Parties of, any and every
such further assurance, document, act or thing as in the reasonable opinion of
the Majority Banks may be necessary or desirable for perfecting the security
contemplated or constituted by the Security Documents.
43
|
13.7
|
Conflicts
|
In the
event of any conflict between this Agreement and any of the other Borrowers'
Security Documents, the provisions of this Agreement shall prevail.
|
14
|
Operating
Accounts
|
|
14.1
|
General
|
The
Borrowers jointly and severally undertake with each Creditor that they
will:
|
14.1.1
|
on
or before the Drawdown Date of the first Advance to be drawn down, open
each of the Operating Accounts; and
|
|
14.1.2
|
procure
that all moneys payable to a Borrower in respect of the Earnings (as
defined in the relevant Deed of Covenant) of such Borrower’s Ship shall,
unless and until the Agent (acting on the instructions of the Majority
Banks) directs to the contrary pursuant to clause 2.1 of each of the Deed
of Covenant, be paid to such Borrower’s Operating Account Provided however
that if any of the moneys paid to either of the Operating Accounts are
payable in a currency other than Dollars, the Account Bank shall (and the
Borrowers hereby irrevocably and unconditionally instruct the Account Bank
to) convert such moneys into Dollars at the Account Bank’s spot rate of
exchange at the relevant time for the purchase of Dollars with such
currency and the term “spot rate of exchange”
shall include any premium and costs of exchange payable in connection with
the purchase of Dollars with such
currency.
|
|
14.2
|
Account
terms
|
Amounts
standing to the credit of the Operating Accounts shall (unless otherwise agreed
between the Account Bank and the Borrowers) bear interest at the rates from time
to time offered by the Account Bank to its customers for Dollar deposits in
comparable amounts for comparable periods. Interest shall accrue on
the Operating Accounts from day to day and be calculated on the basis of actual
days elapsed and a three hundred and sixty (360) day year and shall be credited
to the Operating Accounts at such times as the Account Bank and the Borrowers
shall agree.
|
14.3
|
Withdrawals
|
Unless
the Agent (acting on the instructions of the Majority Banks) otherwise agrees in
writing, neither Borrower shall be entitled to withdraw any moneys from its
Operating Account at any time from the date of this Agreement and so long as any
moneys are owing under the Security Documents save that, unless and until a
Default shall occur and the Agent (acting on the instructions of the Majority
Banks) shall direct to the contrary, each Borrower may withdraw moneys from its
Operating Account:
|
14.3.1
|
to
pay any amount to the Agent in or towards payments of any instalments of
interest or principal or any other amounts then payable pursuant to the
Security Documents;
|
|
14.3.2
|
to
pay the proper and reasonable operating expenses of its
Ship;
|
|
14.3.3
|
to
pay the proper and reasonable expenses of administering its affair;
and
|
|
14.3.4
|
to
make any payments of dividends to the extent permitted by clause
8.3.12.
|
44
|
14.4
|
Application
of accounts
|
At any time
after the occurrence of an Event of Default, the Agent may (and on the
instructions of the Majority Banks shall), without notice to the Borrowers,
instruct the Account Bank to apply all moneys then standing to the credit of the
Operating Accounts or either of them (together with interest from time to time
accruing or accrued thereon) in or towards satisfaction of any sums due to the
Creditors or any of them under the Security Documents in the manner specified in
clause 13.1.
|
14.5
|
Charging
of Operating Accounts
|
The
Operating Accounts and all amounts from time to time standing to the credit
thereof shall be subject to the security constituted and the rights conferred by
the Operating Account Assignments.
|
15
|
Assignment,
transfer and lending office
|
|
15.1
|
Benefit
and burden
|
This
Agreement shall be binding upon, and enure for the benefit of, the Creditors and
the Borrowers and their respective successors in title.
|
15.2
|
No
assignment by Borrowers
|
Neither
Borrower may assign or transfer any of its rights or obligations under this
Agreement.
|
15.3
|
Transfers
by Banks
|
Subject
to the prior written consent of the Borrowers (such consent not to be
unreasonably withheld and the request for which to be promptly responded to) and
the Agent and any Bank (the “Transferor Bank”) may at any
time cause all or any part of its rights, benefits and/or obligations under this
Agreement and the Security Documents to be transferred to any other bank or
financial institution experienced in shipping finance (a “Transferee Bank”) by
delivering to the Agent a Transfer Certificate duly completed and duly executed
by the Transferor Bank and the Transferee Bank. No such transfer is
binding on, or effective in relation to, the Borrowers, the Agent or the other
Creditors unless (i) it is effected or evidenced by a Transfer Certificate which
complies with the provisions of this clause 15.3 and is signed by or on behalf
of the Transferor Bank, the Transferee Bank and the Agent (on behalf of itself,
the Borrowers and the other Creditors) and (ii) such transfer of rights under
the other Security Documents has been effected and registered. Upon
signature of any such Transfer Certificate by the Agent, which signature shall
be effected as promptly as is practicable after such Transfer Certificate has
been delivered to the Agent, and subject to the terms of such Transfer
Certificate, such Transfer Certificate shall have effect as set out
below.
The
following further provisions shall have effect in relation to any Transfer
Certificate:
|
15.3.1
|
a
Transfer Certificate may be in respect of a Bank’s rights in respect of
all, or part of, its Commitment and shall be in respect of the same
proportion of its Contribution;
|
|
15.3.2
|
a
Transfer Certificate shall only be in respect of rights and obligations of
the Transferor Bank in its capacity as a Bank and shall not transfer its
rights and obligations as Agent, Security Agent or in any other capacity,
as the case may be and such other rights and obligations may only be
transferred in accordance with any applicable provisions of this
Agreement;
|
45
|
15.3.3
|
a
Transfer Certificate shall take effect in accordance with English law as
follows:
|
|
|
(a)
|
to
the extent specified in the Transfer Certificate, the Transferor Bank’s
payment rights and all its other rights (other than those referred to in
sub-clause 15.3.2 above) under this Agreement are assigned to the
Transferee Bank absolutely, free of any defects in the Transferor Bank’s
title and of any rights or equities which the Borrowers or either of them
had against the Transferor Bank;
|
|
|
(b)
|
the
Transferor Bank’s Commitment is discharged to the extent specified in the
Transfer Certificate;
|
|
|
(c)
|
the
Transferee Bank becomes a Bank with a Contribution and a Commitment of the
amounts specified in the Transfer
Certificate;
|
|
|
(d)
|
the
Transferee Bank becomes bound by all the provisions of this Agreement and
the Security Documents which are applicable to the Banks generally,
including those about pro-rata sharing and the exclusion of liability on
the part of, and the indemnification of, the Agent, the Security Agent,
the Swap Provider and the Arranger in accordance with the provisions of
clause 16 and to the extent that the Transferee Bank becomes bound by
those provisions, the Transferor Bank ceases to be bound by
them;
|
|
|
(e)
|
an
Advance or part of an Advance which the Transferee Bank makes after the
Transfer Certificate comes into effect ranks in point of priority and
security in the same way as it would have ranked had it been made by the
Transferor Bank, assuming that any defects in the Transferor Bank’s title
and any rights or equities of any Security Party against the Transferor
Bank had not existed; and
|
|
|
(f)
|
the
Transferee Bank becomes entitled to all the rights under this Agreement
which are applicable to the Banks generally, including but not limited to
those relating to the Majority Banks and those under clauses
3.6, 5
and 12 and to the extent that the Transferee Bank becomes entitled to such
rights, the Transferor Bank ceases to be entitled to
them;
|
|
15.3.4
|
the
rights and equities of the Borrowers or of any other Security Party
referred to above include, but are not limited to, any right of set-off
and any other kind of cross-claim;
and
|
|
15.3.5
|
the
Borrowers, the Account Bank, the Security Agent, the Swap Provider and the
Banks hereby irrevocably authorise and instruct the Agent to sign any such
Transfer Certificate on their behalf and undertake not to withdraw, revoke
or qualify such authority or instruction at any time. Promptly
upon its signature of any Transfer Certificate, the Agent shall notify the
Borrowers, the Security Agent, the Swap Provider, the Account Bank, the
Arranger, the Transferor Bank, the Transferee Bank and the other
Banks.
|
|
15.4
|
Reliance
on Transfer Certificate
|
|
15.4.1
|
The
Agent shall be entitled to rely on any Transfer Certificate believed by it
to be genuine and correct and to have been presented or signed by the
persons by whom it purports to have been presented or signed, and shall
not be liable to any of the parties to this Agreement and the Security
Documents for the consequences of such
reliance.
|
|
The
Agent shall at all times during the continuation of this Agreement
maintain a register in which it shall record the name, Commitments,
Contributions and administrative details (including the lending office)
from time to time of the Banks holding a Transfer Certificate and the date
at which the transfer referred to in such Transfer Certificate held by
each Bank was transferred to such Bank, and the Agent shall make the said
register available for inspection by any Bank, the Security Agent, the
Swap Provider, the Account Bank or either Borrower during normal banking
hours upon receipt by the Agent of reasonable prior notice requesting the
Agent to do so.
|
46
|
15.4.3
|
The
entries on the said register shall, in the absence of manifest error, be
conclusive in determining the identities of the Commitments, the
Contributions and the Transfer Certificates held by the Banks from time to
time and the principal amounts of such Transfer Certificates and may be
relied upon by the Agent, the other Creditors and the Security Parties for
all purposes in connection with this Agreement and the Security
Documents.
|
|
15.5
|
Transfer
fees and expenses
|
If any
Bank causes the transfer of all or any part of its rights, benefits and/or
obligations under the Security Documents, it shall pay to the Agent and/or the
Security Agent on demand all costs, fees and expenses (including, but not
limited to, legal fees and expenses), and all value added tax thereon, verified
by the Agent or, as the case may be, the Security Agent as having been incurred
by it in connection with such transfer.
|
15.6
|
Documenting
transfers
|
If any
Bank transfers all or any part of its rights, benefits and/or obligations as
provided in clause 15.3, the Borrowers jointly and severally undertake with
each Creditor, immediately on being requested to do so by the Agent and at the
cost of the Transferor Bank, to enter into, and procure that the other Security
Parties shall (at the cost of the Transferor Bank) enter into, such documents as
may be necessary or desirable to transfer to the Transferee Bank all or the
relevant part of such Bank’s interest in the Security Documents and all relevant
references in this Agreement to such Bank shall thereafter be construed as a
reference to the Transferor Bank and/or its Transferee Bank (as the case may be)
to the extent of their respective interests.
|
15.7
|
Sub-participation
|
A Bank
may sub-participate to any other bank or financial institution all or any part
of its rights and/or obligations under the Security Documents without the
consent of, or notice to, the Borrowers but with the prior written consent of
the Agent (acting on the instructions of the Majority Banks).
|
15.8
|
Lending
offices
|
Each
Bank shall lend through its office at the address specified in schedule 1
or, as the case may be, in any relevant Transfer Certificate or through any
other office of such Bank selected from time to time by such Bank through which
such Bank wishes to lend for the purposes of this Agreement. If the
office through which a Bank is lending is changed pursuant to this
clause 15.8, such Bank shall notify the Agent promptly of such change and
the Agent shall notify the Borrowers, the Security Agent, the Swap Provider, the
Account Bank and the other Banks.
|
15.9
|
Disclosure
of information
|
Any
Bank may, with the prior written consent of the Agent, disclose to a prospective
Transferee Bank or to any other person who may propose entering into contractual
relations with such Bank in relation to this Agreement such information about
the Borrowers, the other Security Parties or any of them as such Bank shall
consider appropriate.
|
16
|
Arranger,
Agent and Security Agent
|
|
16.1
|
Appointment
of the Agent
|
Each
Bank and the Swap Provider irrevocably appoints the Agent as its agent for the
purposes of this Agreement and such of the Security Documents to which it may be
appropriate for the Agent to be party. By virtue of such appointment, each of
the Banks and the Swap Provider hereby authorises the Agent:
47
|
16.1.1
|
to
execute such documents as may be approved by the Majority Banks for
execution by the Agent; and
|
|
16.1.2
|
(whether
or not by or through employees or agents) to take such action on such
Bank’s or, as the case may be, the Swap Provider’s behalf and to exercise
such rights, remedies, powers and discretions as are specifically
delegated to the Agent by this Agreement and/or any other Security
Document, together with such powers and discretions as are reasonably
incidental thereto.
|
|
16.2
|
Agent’s
actions
|
Any
action taken by the Agent under or in relation to this Agreement or any of the
other Security Documents whether with requisite authority, or on the basis of
appropriate instructions, received from the Banks (or as otherwise duly
authorised) shall be binding on all the Banks, the Swap Provider and the other
Creditors.
|
16.3
|
Agent’s
duties
|
|
16.3.1
|
promptly
notify each Bank of the contents of each notice, certificate or other
document received by it from the Borrowers under or pursuant to clauses
8.1.1, 8.1.5, 8.1.6 and 8.1.7; and
|
|
16.3.2
|
(subject
to the other provisions of this clause 16) take (or instruct the Security
Agent to take) such action or, as the case may be, refrain from taking (or
authorise the Security Agent to refrain from taking) such action with
respect to the exercise of any of its rights, remedies, powers and
discretions as agent, as the Majority Banks may
direct.
|
|
16.4
|
Agent’s
rights
|
The
Agent may:
|
16.4.1
|
in
the exercise of any right, remedy, power or discretion in relation to any
matter, or in any context, not expressly provided for by this Agreement or
any of the other Security Documents, act or, as the case may be, refrain
from acting (or authorise the Security Agent to act or refrain from
acting) in accordance with the instructions of the Banks, and shall be
fully protected in so doing;
|
|
16.4.2
|
unless
and until it shall have received directions from the Majority Banks, take
such action or, as the case may be, refrain from taking such action (or
authorise the Security Agent to take or refrain from taking such action)
in respect of a Default of which the Agent has actual knowledge as it
shall deem advisable in the best interests of the Banks and the Swap
Provider (but shall not be obliged to do
so);
|
|
16.4.3
|
refrain
from acting (or authorise the Security Agent to refrain from acting) in
accordance with any instructions of the Banks to institute any legal
proceedings arising out of or in connection with this Agreement or any of
the other Security Documents until it and/or the Security Agent has been
indemnified and/or secured to its satisfaction against any and all costs,
expenses or liabilities (including legal fees) which it would or might
incur as a result;
|
|
16.4.4
|
deem
and treat (i) each Bank as the person entitled to the benefit of the
Contribution of such Bank for all purposes of this Agreement unless and
until a Transfer Certificate shall have been filed with the Agent pursuant
to clause 15.3 and shall have become effective, and (ii) the office set
opposite the name of each of the Banks in schedule 1 or, as the case may
be, in any relevant Transfer Certificate as such Bank’s lending office
unless and until a written notice of change of lending office shall have
been received by the Agent and the Agent may act upon any such notice
unless and until the same is superseded by a further such
notice;
|
48
|
16.4.5
|
rely
as to matters of fact which might reasonably be expected to be within the
knowledge of any Security Party upon a certificate signed by any director
or officer of the relevant Security Party on behalf of the relevant
Security Party; and
|
|
16.4.6
|
do
anything which is in its opinion necessary or desirable to comply with any
law or regulation in any
jurisdiction.
|
|
16.5
|
No
liability of Arranger or Agent
|
Neither
the Arranger nor the Agent nor any of their respective employees and agents
shall:
|
16.5.1
|
be
obliged to make any enquiry as to the use of any of the proceeds of either
Advance unless (in the case of the Agent) so required in writing by a
Bank, in which case the Agent shall promptly make the appropriate request
to the Borrowers; or
|
|
16.5.2
|
be
obliged to make any enquiry as to any breach or default by either of the
Borrowers or any other Security Party in the performance or observance of
any of the provisions of this Agreement or any of the other Security
Documents or as to the existence of a Default unless the Agent has actual
knowledge thereof or has been notified in writing thereof by a Bank, in
which case the Agent shall promptly notify the Banks of the relevant event
or circumstance; or
|
|
16.5.3
|
be
obliged to enquire whether or not any representation or warranty made by
either of the Borrowers or any other Security Party pursuant to this
Agreement or any of the other Security Documents is true;
or
|
|
16.5.4
|
be
obliged to do anything (including, without limitation, disclosing any
document or information) which would, or might in its opinion, be contrary
to any law or regulation or be a breach of any duty of confidentiality or
otherwise be actionable or render it liable to any person;
or
|
|
16.5.5
|
be
obliged to account to any Bank for any sum or the profit element of any
sum received by it for its own account;
or
|
|
16.5.6
|
be
obliged to institute any legal proceedings arising out of or in connection
with this Agreement or any of the other Security Documents other than on
the instructions of the Majority Banks;
or
|
|
16.5.7
|
be
liable to any Bank or the Swap Provider for any action taken or omitted
under or in connection with this Agreement or any of the other Security
Documents unless caused by its gross negligence or wilful
misconduct.
|
For the
purposes of this clause 16, neither the Arranger nor the Agent shall be treated
as having actual knowledge of any matter of which the corporate finance or any
other division outside the agency or loan administration department of the
Arranger or the person for the time being acting as the Agent may become aware
in the context of corporate finance, advisory or lending activities from time to
time undertaken by the Arranger or, as the case may be, the Agent for any
Security Party or any other person which may be a trade competitor of any
Security Party or may otherwise have commercial interests similar to those of
any Security Party.
49
|
16.6
|
Non-reliance
on Arranger or Agent
|
Each Bank and
the Swap Provider acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the Arranger or the Agent to induce it
to enter into this Agreement or any of the other Security Documents and that it
has made and will continue to make, without reliance on the Arranger or the
Agent and based on such documents as it considers appropriate, its own appraisal
of the creditworthiness of the Security Parties and its own independent
investigation of the financial condition, prospects and affairs of the Security
Parties in connection with the making and continuation of such Bank’s Commitment
or Contribution under this Agreement. Neither the Arranger nor the Agent shall
have any duty or responsibility, either initially or on a continuing basis, to
provide any other Creditor with any credit or other information with respect to
any Security Party whether coming into its possession before the making of
either Advance or at any time or times thereafter other than as provided in
clause 16.3.1.
|
16.7
|
No
responsibility on Arranger or Agent for Borrowers’
performance
|
Neither
the Arranger nor the Agent shall have any responsibility or liability to any
other Creditor:
|
16.7.1
|
on
account of the failure of any Security Party to perform its obligations
under any of the Security Documents;
or
|
|
16.7.2
|
for
the financial condition of any Security Party;
or
|
|
16.7.3
|
for
the completeness or accuracy of any statements, representations or
warranties in any of the Security Documents or any document delivered
under any of the Security Documents;
or
|
|
16.7.4
|
for
the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of any of the Security
Documents or of any certificate, report or other document executed or
delivered under any of the Security Documents;
or
|
|
16.7.5
|
to
investigate or make any enquiry into the title of either of the Borrowers
or any other Security Party to the Ships or any other security or any part
thereof; or
|
|
16.7.6
|
for
the failure to register any of the Security Documents with any official or
regulatory body or office or elsewhere;
or
|
|
16.7.7
|
for
taking or omitting to take any other action under or in relation to any of
the Security Documents or any aspect of any of the Security Documents;
or
|
|
16.7.8
|
on
account of the failure of the Security Agent to perform or discharge any
of its duties or obligations under the Security Documents;
or
|
|
16.7.9
|
otherwise
in connection with this Agreement or its negotiation or for acting (or, as
the case may be, refraining from acting) in accordance with the
instructions of the Banks.
|
|
16.8
|
Reliance
on documents and professional
advice
|
The
Arranger and the Agent shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to have been
signed or sent by the proper person and shall be entitled to rely as to legal or
other professional matters on opinions and statements of any legal or other
professional advisers selected or approved by it (including those in the
Arranger’s or, as the case may be, the Agent’s employment).
50
|
16.9
|
Other
dealings
|
The
Arranger and the Agent may, without any liability to account to any other
Creditor, accept deposits from, lend money to, and generally engage in any kind
of banking or other business with, and provide advisory or other services to,
any Security Party or any of its Related Companies or any of the other Creditors
as if it was not the Arranger or, as the case may be, the Agent.
|
16.10
|
Rights
of Agent as Bank; no partnership
|
With
respect to its own Commitment and Contribution (if any) the Agent shall have the
same rights and powers under the Security Documents as any other Bank and may
exercise the same as though it were not performing the duties and functions
delegated to it under this Agreement and the term “Banks” shall, unless the
context clearly otherwise indicates, include the Agent in its individual
capacity as a Bank. This Agreement shall not and shall not be construed so as to
constitute a partnership between the parties or any of them.
|
16.11
|
Amendments
and waivers
|
|
16.11.1
|
Subject
to clause 16.11.2, the Agent may, with the written consent of the Majority Banks
(or if and to the extent expressly authorised by the other provisions of
any of the Security Documents) and, if so instructed by the Majority
Banks, shall:
|
|
|
(a)
|
agree
(or authorise the Security Agent to agree) amendments or modifications to
any of the Security Documents with any Security Party;
and/or
|
|
|
(b)
|
waive
breaches of, or defaults under, or otherwise excuse performance of, any
provision of any of the other Security Documents by any Security Party (or
authorise the Security Agent to do
so).
|
Any
such action so authorised and effected by the Agent shall be documented in such
manner as the Agent shall (with the approval of the Majority Banks) determine,
shall be promptly notified to the Banks by the Agent and (without prejudice to
the generality of clause 16.2) shall be binding on all
the Creditors.
|
16.11.2
|
Except
with the prior written consent of all the Banks, the Agent shall have no
authority on behalf of the Banks to agree (or authorise the Security Agent
to agree) with any Security Party any amendment or modification to any of
the Security Documents or to grant (or authorise the Security Agent to
grant) waivers in respect of breaches or defaults or to vary or excuse (or
authorise the Security Agent to vary or excuse) performance of or under
any of the Security Documents by any Security Party, if the effect of such
amendment, modification, waiver or excuse would be
to:
|
|
|
(a)
|
reduce
the Margin;
|
|
|
(b)
|
postpone
the due date or reduce the amount of any payment of principal, interest or
other amount payable by any Security Party under any of the Security
Documents;
|
|
|
(c)
|
change
the currency in which any amount is payable by any Security Party under
any of the Security Documents;
|
|
|
(d)
|
increase
any Bank’s Commitment;
|
|
|
(e)
|
extend
the Termination Date;
|
|
|
(f)
|
change
any provision of any of the Security Documents which expressly or implied
requires the approval or consent of all the Banks such that the relevant
approval or consent may be given otherwise than with the sanction of all
the Banks;
|
51
|
|
(g)
|
change
the order of distribution under clause 6.9 or clause
13.1;
|
|
|
(h)
|
change
this clause 16.11;
|
|
|
(i)
|
change
the definition of “Majority Banks” in
clause 1.2; or
|
|
|
(j)
|
release
any Security Party from the security constituted by any Security Document
(except as required by the terms thereof or by law) or change the terms
and conditions upon which such security or guarantee may be, or is
required to be, released.
|
|
16.12
|
Reimbursement
and indemnity by Banks
|
Each
Bank shall reimburse the Agent (rateably in accordance with such Bank’s
Commitment or, following the first drawdown, Contribution), to the extent that
the Agent is not reimbursed by the Borrowers, for the costs, charges and
expenses incurred by the Agent which are expressed to be payable by the
Borrowers under clause 5.2 including (in each case) the fees and expenses of
legal or other professional advisers. Each Bank shall on demand indemnify the
Agent (rateably in accordance with such Bank’s Commitment or, following the
first drawdown, Contribution) against all liabilities, damages, costs and claims
whatsoever incurred by the Agent in connection with any of the Security
Documents or the performance of its duties under any of the Security Documents
or any action taken or omitted by the Agent under any of the Security Documents,
unless such liabilities, damages, costs or claims arise from the Agent’s own
gross negligence or wilful misconduct.
|
16.13
|
Retirement
of Agent
|
|
16.13.1
|
The
Agent may, (having given to the Borrowers, each of the Banks and the Swap
Provider not less than thirty (30) days’ notice of its intention to do
so), retire from its appointment as Agent under this Agreement, provided
that no such retirement shall take effect unless there has been appointed
by the Banks and the Swap Provider as a successor
agent:
|
|
|
(a)
|
a
Bank nominated within a period of twenty eight (28) days by the Majority
Banks or, failing such a
nomination,
|
|
|
(b)
|
any
reputable bank or financial institution experienced in shipping finance
nominated by the retiring Agent.
|
Any
corporation into which the retiring Agent may be merged or converted or any
corporation with which the Agent may be consolidated or any corporation
resulting from any merger, conversion, amalgamation, consolidation or other
reorganisation to which the Agent shall be a party shall, to the extent
permitted by applicable law, be the successor Agent under this Agreement and the
other Security Documents without the execution or filing of any document or any
further act on the part of any of the parties to this Agreement and the other
Security Documents save that notice of any such merger, conversion,
amalgamation, consolidation or other reorganisation shall forthwith be given to
each Security Party, the Banks and the Swap Provider. Prior to any
such successor being appointed, the Agent agrees to consult with the Borrowers
as to the identity of the proposed successor and to take account of any
reasonable objections which the Borrowers may raise to such successor being
appointed.
|
16.13.2
|
Upon
any such successor as aforesaid being appointed, the retiring Agent shall
be discharged from any further obligation under the Security Documents
(but shall continue to have the benefit of this clause 16 in respect of
any action it has taken or refrained from taking prior to such discharge)
and its successor and each of the other parties to this Agreement shall
have the same rights and obligations among themselves as they would have
had if such successor had been a party to this Agreement in place of the
retiring Agent. The retiring Agent shall (at the expense of the Borrowers)
provide its successor with copies of such of its records as its successor
reasonably requires to carry out its functions under the Security
Documents.
|
52
|
16.14
|
Appointment
and retirement of Security Agent
|
|
16.14.1
|
Appointment
|
Each of
the Agent, the Swap Provider and the Banks irrevocably appoints the Security
Agent as its security agent and trustee for the purposes of this Agreement and
the other Security Documents on the terms set out in this Agreement. By virtue
of such appointment, the Agent, the Swap Provider and each of the Banks hereby
authorises the Security Agent (whether or not by or through employees or agents)
to take such action on its behalf and to exercise such rights, remedies, powers
and discretions as are specifically delegated to the Security Agent by this
Agreement and/or any of the other Security Documents together with such powers
and discretions as are reasonably incidental thereto.
|
16.14.2
|
Retirement
|
|
|
(a)
|
Without
prejudice to clause 16.13, the Security Agent may, having given to the
Borrowers and each of the Banks and the Swap Provider not less than
fifteen (15) days’ notice of its intention to do so, retire from its
appointment as Security Agent under this Agreement and any Trust Deed,
provided that no such retirement shall take effect unless there has been
appointed by the Banks, the Agent and the Swap Provider as a successor
security agent and trustee:
|
|
|
(i)
|
a
Related Company of the Security Agent nominated by the Security Agent
which the Banks hereby irrevocably and unconditionally agree to appoint
or, failing such nomination,
|
|
|
(ii)
|
a
bank or trust corporation nominated by the Majority Banks or, failing such
a nomination,
|
(iii) any
bank or trust corporation nominated by the retiring Security Agent,
and, in
any case (A) such successor security agent and trustee shall have duly accepted
such appointment by delivering to the Agent (1) written confirmation (in a form
acceptable to the Agent) of such acceptance agreeing to be bound by this
Agreement in the capacity of Security Agent as if it had been an original party
to this Agreement and (2) a duly executed Trust Deed and (B) such successor
security agent and trustee shall have duly entered into, whether with the
retiring Security Agent and/or with the Borrowers and/or with the Creditors or
with any of them, such documents in connection with the Security Documents as
the Agent shall require in its absolute discretion.
|
|
(b)
|
Any
corporation into which the retiring Security Agent may be merged or
converted or any corporation with which the Security Agent may be
consolidated or any corporation resulting from any merger, conversion,
amalgamation, consolidation or other reorganisation to which the Security
Agent shall be a party shall, to the extent permitted by applicable law,
be the successor Security Agent under this Agreement, any Trust Deed and
the other Security Documents without the execution or filing of any
document or any further act on the part of any of the parties to this
Agreement, any Trust Deed and the other Security Documents save that
notice of any such merger, conversion, amalgamation, consolidation or
other reorganisation shall forthwith be given to each Security Party, the
Banks, the Agent and the Swap Provider. Prior to any such
successor being appointed, the Security Agent agrees to consult with the
Borrowers as to the identity of the proposed successor and to take account
of any reasonable objections which the Borrowers may raise to such
successor being appointed.
|
53
|
|
(c)
|
Upon
any such successor as aforesaid being appointed, the retiring Security
Agent shall be discharged from any further obligation under the Security
Documents (but shall continue to have the benefit of this clause 16
in respect of any action it has taken or refrained from taking prior to
such discharge) and its successor and each of the other parties to this
Agreement shall have the same rights and obligations among themselves as
they would have had if such successor had been a party to this Agreement
in place of the retiring Security Agent. The retiring Security Agent shall
(at the expense of the Borrowers) provide its successor with copies of
such of its records as its successor reasonably requires to carry out its
functions under the Security
Documents.
|
|
16.15
|
Powers
and duties of the Security Agent
|
|
16.15.1
|
The
Security Agent shall have no duties, obligations or liabilities to the
Agent, the Swap Provider or any of the Banks beyond those expressly stated
in any of the Security Documents. The Agent, the Swap Provider and each of
the Banks hereby authorises the Security Agent to enter into and
execute:
|
|
|
(a)
|
each
of the Security Documents to which the Security Agent is or is intended to
be a party; and
|
|
|
(b)
|
any
and all such other Security Documents as may be approved by the Agent in
writing (acting on the instructions of the Majority Banks) for entry into
by the Security Agent,
|
and, in
each and every case, to hold any and all security thereby created upon trust for
the Banks, the Agent and the Swap Provider in the manner contemplated by this
Agreement.
|
16.15.2
|
Subject
to clause 16.15.3 the Security Agent may, with the prior consent of the Majority
Banks communicated in writing by the Agent, concur with any of the
Security Parties to:
|
|
|
(a)
|
amend,
modify or otherwise vary any provision of the Security Documents to which
the Security Agent is or is intended to be a party;
or
|
|
|
(b)
|
waive
breaches of, or defaults under, or otherwise excuse performance of, any
provision of the Security Documents to which the Security Agent is or is
intended to be a party.
|
|
16.15.3
|
The
Security Agent shall not concur with any Security Party with respect to
any of the matters described in clause 16.11.2 without the
consent of all the Banks communicated in writing by the
Agent.
|
|
16.15.4
|
The
Security Agent shall (subject to the other provisions of this clause 16)
take such action or, as the case may be, refrain from taking such action,
with respect to any of its rights, powers and discretions as security
agent and trustee, as the Agent may direct. Subject as provided
in the foregoing provisions of this clause, unless and until the Security
Agent shall have received such instructions from the Agent, the Security
Agent may, but shall not be obliged to, take (or refrain from taking) such
action under or pursuant to the Security Documents referred to in clause
16.15.1 as the Security Agent shall deem advisable in the best interests
of the Creditors provided that (for the avoidance of doubt), to the extent
that this clause might otherwise be construed as authorising the Security
Agent to take, or refrain from taking, any action of the nature referred
to in clause 16.15.2-and for which the
prior consent of the Banks is expressly required under clause 16.15.3 - clauses
16.15.2 and 16.15.3 shall apply to the exclusion of this
clause.
|
54
|
16.15.5
|
None
of the Banks nor the Swap Provider nor the Agent shall have any
independent power to enforce any of the Security Documents referred to in
clause 16.15.1 or to exercise any rights, discretions or powers or to
grant any consents or releases under or pursuant to such Security
Documents or otherwise have direct recourse to the security and/or
guarantees constituted by such Security Documents except through the
Security Agent.
|
|
16.15.6
|
For the
purpose of this clause 16, the Security Agent may, rely and act in
reliance upon any information from time to time furnished to the Security
Agent by the Agent (whether pursuant to clause 16.15.7 or otherwise)
unless and until the same is superseded by further such information, so
that the Security Agent shall have no liability or responsibility to any
party as a consequence of placing reliance on and acting in reliance upon
any such information unless the Security Agent has actual knowledge that
such information is inaccurate or
incorrect.
|
|
16.15.7
|
Without
prejudice to the foregoing, each of the Agent, the Swap Provider and the
Banks (whether directly or through the Agent) shall provide the Security
Agent with such written information as it may reasonably require for the
purpose of carrying out its duties and obligations under the Security
Documents referred to in clause
16.15.1.
|
|
16.15.8
|
Each
Bank shall reimburse the Security Agent (rateably in accordance with such
Bank’s Commitment or, following the first drawdown, Contribution), to the
extent that the Security Agent is not reimbursed by the Borrowers, for the
costs, charges and expenses incurred by the Agent which are expressed to
be payable by the Borrowers under clause 5.2 including (in each case) the
fees and expenses of legal or other professional advisers. Each Bank shall
on demand indemnify the Security Agent (rateably in accordance with such
Bank’s Commitment or, following the first drawdown, Contribution) against
all liabilities, damages, costs and claims whatsoever incurred by the
Security Agent in connection with any of the Security Documents or the
performance of its duties under any of the Security Documents or any
action taken or omitted by the Security Agent under any of the Security
Documents, unless such liabilities, damages, costs or claims arise from
the Security Agent’s own gross negligence or wilful
misconduct.
|
|
16.16
|
Trust
provisions
|
|
16.16.1
|
The
trusts constituted or evidenced in or by this Agreement and the Trust Deed
shall remain in full force and effect until whichever is the earlier
of:
|
|
|
(a)
|
the
expiration of a period of eighty (80) years from the date of this
Agreement; and
|
|
|
(b)
|
receipt
by the Security Agent of confirmation in writing by the Agent that there
is no longer outstanding any Indebtedness (actual or contingent) which is
secured or guaranteed or otherwise assured by or under any of the Security
Documents,
|
and the
parties to this Agreement declare that the perpetuity period applicable to this
Agreement and the trusts declared by the Trust Deed shall for the purposes of
the Perpetuities and Accumulations Xxx 0000 be the period of eighty (80) years
from the date of this Agreement.
|
16.16.2
|
In
its capacity as trustee in relation to the Security Documents specified in
clause 16.15.1 the Security Agent shall, without prejudice to any of the
powers, discretions and immunities conferred upon trustees by law (and to
the extent not inconsistent with the provisions of any of those Security
Documents), have all the same powers and discretions as a natural person
acting as the beneficial owner of such property and/or as are conferred
upon the Security Agent by any of those Security
Documents.
|
55
|
16.16.3
|
It
is expressly declared that, in its capacity as trustee in relation to the
Security Documents specified in clause 16.15.1, the Security Agent shall
be entitled to invest moneys forming part of the security and which, in
the opinion of the Security Agent, may not be paid out promptly following
receipt in the name or under the control of the Security Agent in any of
the investments for the time being authorised by law for the investment by
trustees of trust moneys or in any other property or investments whether
similar to the aforesaid or not or by placing the same on deposit in the
name or under the control of the Security Agent as the Security Agent may
think fit without being under any duty to diversify its investments and
the Security Agent may at any time vary or transpose any such property or
investments for or into any others of a like nature and shall not be
responsible for any loss due to depreciation in value or otherwise of such
property or investments. Any investment of any part of all of the security
may, at the discretion of the Security Agent, be made or retained in the
names of nominees.
|
|
16.17
|
Independent
action by Creditors
|
None of
the Creditors shall enforce, exercise any rights, remedies or powers or grant
any consents or releases under or pursuant to, or otherwise have a direct
recourse to the security and/or guarantees constituted by any of the Security
Documents without the prior written consent of the Majority Banks but, Provided
such consent has been obtained, it shall not be necessary for any other Creditor
to be joined as an additional party in any proceedings for this
purpose.
|
16.18
|
Common
Agent and Security Agent
|
The
Agent and the Security Agent have entered into the Security Documents in their
separate capacities (a) as agent for the Banks and the Swap Provider under and
pursuant to this Agreement (in the case of the Agent) and (b) as security agent
and trustee for the Agent, the Banks and the Swap Provider, under and pursuant
to this Agreement, to hold the guarantees and/or security created by the other
Security Documents specified in clause 16.15.1 on the terms set out in such
Security Documents (in the case of the Security Agent). However, from time to
time the Agent and the Security Agent may be the same entity. When the Agent and
the Security Agent are the same entity and any Security Document provides for
the Agent to communicate with or provide instructions to the Security Agent (and
vice versa), it will not be necessary for there to be any such formal
communications or instructions on those occasions.
|
16.19
|
Co-operation
to achieve agreed priorities of
application
|
The
Banks, the Agent and the Swap Provider shall co-operate with each other and with
the Security Agent and any receiver under the Security Documents in realising
the property and assets subject to the Security Documents and in ensuring that
the net proceeds realised under the Security Documents after deduction of the
expenses of realisation are applied in accordance with
clause 13.1.
|
16.20
|
Prompt
distribution of proceeds
|
Moneys
received by any of the Creditors (whether from a receiver or otherwise) pursuant
to the exercise of (or otherwise by virtue of the existence of) any rights and
powers under or pursuant to any of the Security Documents shall (after providing
for all costs, charges, expenses and liabilities and other payments ranking in
priority) be paid to the Agent for distribution (in the case of moneys so
received by any of the Creditors other than the Agent or the Security Agent) and
shall be distributed by the Agent or, as the case may be, the Security Agent (in
the case of moneys so received by the Agent or, as the case may be, the Security
Agent) in each case in accordance with clause 13.1. The Agent
or, as the case may be, the Security Agent shall make each such application
and/or distribution as soon as is practicable after the relevant moneys are
received by, or otherwise become available to, the Agent or, as the case may be,
the Security Agent save that (without prejudice to any other provision contained
in any of the Security Documents) the Agent or, as the case may be, the Security
Agent (acting on the instructions of the Majority Banks) or any receiver may
credit any moneys received by it to a suspense account
56
for so
long and in such manner as the Agent or such receiver may from time to time
determine with a view to preserving the rights of the Agent and/or the Security
Agent and/or the Account Bank and/or the Swap Provider and/or the Arranger
and/or the Banks or any of them to provide for the whole of their respective
claims against the Borrowers or any other person liable.
|
17
|
Notices
and other matters
|
|
17.1
|
Notices
|
Every
notice, request, demand or other communication under this Agreement or (unless
otherwise provided therein) under any of the other Security Documents
shall:
|
17.1.1
|
be
in writing delivered personally or by first-class prepaid letter (airmail
if available) or facsimile transmission or other means of
telecommunication in permanent written
form;
|
|
17.1.2
|
be
deemed to have been received, subject as otherwise provided in the
relevant Security Document, in the case of a letter, when delivered
personally or three (3) days after it has been put in to the post and, in
the case of a facsimile transmission or other means of telecommunication
in permanent written form, at the time of despatch (provided that if the
date of despatch is not a business day in the country of the addressee or
if the time of despatch is after the close of business in the country of
the addressee it shall be deemed to have been received at the opening of
business on the next such business day);
and
|
|
17.1.3
|
be
sent:
|
|
|
(a)
|
if
to the Borrowers or either of them
at:
|
c/o
DryShips Inc.
Omega
Xxxxxxxx
00
Xxxxxxxxx Xxxxxx
000
00 Xxxxxxxx
Xxxxxx
Fax
no: x00 000 0000 000
Attention: Xx
Xxxxxxxxx Xxxxxxxxx
|
|
(b)
|
if
to the Arranger, the Agent, the Security Agent or the Account Bank
at:
|
DnB
NOR Bank ASA
00
Xx. Xxxxxxx’x Xxxx
Xxxxxx
XX0X 0XX
Xxxxxxx
Fax
No: x00 000 000 0000
Attention: Shipping
Department
|
|
(c)
|
in
the case of a Bank, to its address or facsimile number specified in
schedule 1 or in any relevant Transfer Certificate;
or
|
|
|
(d)
|
in
the case of the Swap Provider, to its address or fax number specified in
paragraph (a) of Part 4 of the Schedule to the Master Swap
Agreement,
|
or to
such other address and/or numbers as is notified by one party to the other
parties under this Agreement.
57
|
17.2
|
Notices
through the Agent
|
Every
notice, request, demand or other communication under this Agreement to be given
by the Borrowers to any other party (other than the Swap Provider) shall be
given to the Agent for onward transmission as appropriate and if such notice,
request, demand or other communication is to be given to the Borrowers it shall
(except if otherwise provided in the Security Documents) be given through the
Agent.
|
17.3
|
No
implied waivers, remedies
cumulative
|
No
failure or delay on the part of any Creditor to exercise any power, right or
remedy under any of the Security Documents shall operate as a waiver thereof,
nor shall any single or partial exercise by any Creditor of any power, right or
remedy preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. The remedies provided in the Security
Documents are cumulative and are not exclusive of any remedies provided by
law.
|
17.4
|
English
language
|
All
certificates, instruments and other documents to be delivered under or supplied
in connection with any of the Security Documents shall be in the English
language or shall be accompanied by a certified English translation upon which
the Creditors or any of them shall be entitled to rely.
|
17.5
|
Borrowers'
obligations
|
|
17.5.1
|
Joint
and several
|
Notwithstanding
anything to the contrary contained in any of the Security Documents, the
agreements, obligations and liabilities of the Borrowers herein contained are
joint and several and shall be construed accordingly. Each of the
Borrowers agrees and consents to be bound by the Security Documents to which it
is, or is to be, a party notwithstanding that the other Borrower which is
intended to sign or to be bound may not do so or be effectually bound and
notwithstanding that any of the Security Documents may be invalid or
unenforceable against the other Borrower, whether or not the deficiency is known
to any of the Creditors.
|
17.5.2
|
Borrowers
as principal debtors
|
Each
Borrower acknowledges and confirms that it is a principal and original debtor in
respect of all amounts which may become payable by the Borrowers in accordance
with the terms of this Agreement or any of the other Security Documents and
agrees that the Creditors may also continue to treat it as such, whether or not
any Creditor is or becomes aware that such Borrower is or has become a surety
for the other Borrower.
|
17.5.3
|
Indemnity
|
The
Borrowers hereby agree jointly and severally to keep the Creditors fully
indemnified on demand against all damages, losses, costs and expenses arising
from any failure of either Borrower to perform or discharge any purported
obligation or liability of a Borrower which would have been the subject of this
Agreement or any other Security Document had it been valid and enforceable and
which is not or ceases to be valid and enforceable against a Borrower on any
ground whatsoever, whether or not known to a Creditor (including, without
limitation, any irregular exercise or absence of any corporate power or lack of
authority of, or breach of duty by, any person purporting to act on behalf of a
Borrower (or any legal or other limitation, whether under the Limitation Acts or
otherwise or any disability or death, bankruptcy, unsoundness of mind,
insolvency, liquidation, dissolution, winding up, administration, receivership,
amalgamation, reconstruction or any other incapacity of any person whatsoever
(including, in the case of a partnership, a termination or change in the
composition of the partnership) or any change of name or style or constitution
of any Security Party)).
58
|
17.5.4
|
Liability
unconditional
|
None of
the obligations or liabilities of the Borrowers under this Agreement or any
other Security Document shall be discharged or reduced by reason
of:
|
|
(a)
|
the
death, bankruptcy, unsoundness of mind, insolvency, liquidation,
dissolution, winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of any person whatsoever (including, in
the case of a partnership, a termination or change in the composition of
the partnership) or any change of name or style or constitution of a
Borrower or any other person
liable;
|
|
|
(b)
|
the
Agent (acting on the instructions of the Majority Banks) or the Security
Agent granting any time, indulgence or concession to, or compounding with,
discharging, releasing or varying the liability of, a Borrower or any
other person liable or renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing with the same
in any manner whatsoever or concurring in, accepting, varying any
compromise, arrangement or settlement or omitting to claim or enforce
payment from a Borrower or any other person liable;
or
|
|
|
(c)
|
anything
done or omitted which but for this provision might operate to exonerate
the Borrowers or either of them.
|
|
Recourse
to other security
|
The
Creditors shall not be obliged to make any claim or demand or to resort to any
Security Document or other means of payment now or hereafter held by or
available to it for enforcing this Agreement or any of the Security Documents
against a Borrower or any other person liable and no action taken or omitted by
any Creditor in connection with any such Security Document or other means of
payment will discharge, reduce, prejudice or affect the liability of the
Borrowers under this Agreement and the Security Documents to which either of
them is, or is to be, a party.
|
17.5.6
|
Waiver
of Borrowers' rights
|
Each
Borrower agrees with each Creditor that, from the date of this Agreement and so
long as any moneys are owing under any of the Security Documents and while all
or any part of the Total Commitment remains outstanding, it will not, without
the prior written consent of the Agent (acting on the instructions of the
Majority Banks):
|
|
(a)
|
exercise
any right of subrogation, reimbursement and indemnity against the other
Borrower or any other person liable under the Security
Documents;
|
|
|
(b)
|
demand
or accept repayment in whole or in part of any Indebtedness now or
hereafter due to such Borrower from the other Borrower or from any other
person liable or demand or accept any guarantee, indemnity or other
assurance against financial loss or any document or instrument created or
evidencing an Encumbrance in respect of the same or dispose of the
same;
|
|
|
(c)
|
take
any steps to enforce any right against any other Borrower or any other
person liable in respect of any such moneys;
or
|
59
|
|
(d)
|
claim
any set-off or counterclaim against the other Borrower or any other person
liable or claiming or proving in competition with any Creditor in the
liquidation of any other Borrower or any other person liable or have the
benefit of, or share in, any payment from or composition with, the other
Borrower or any other person liable or any other Security Document now or
hereafter held by any Creditor for any moneys owing under this Agreement
or for the obligations or liabilities of any other person liable but so
that, if so directed by the Agent, it will prove for the whole or any part
of its claim in the liquidation of any other Borrower or other person
liable on terms that the benefit of such proof and all money received by
it in respect thereof shall be held on trust for the Banks and applied in
or towards discharge of any moneys owing under this Agreement in such
manner as the Agent (acting on the instructions of the Majority Banks)
shall deem appropriate.
|
|
18
|
Governing
law and jurisdiction
|
|
18.1
|
Law
|
This
Agreement is governed by, and shall be construed in accordance with, English
law.
|
18.2
|
Submission
to jurisdiction
|
The
Borrowers jointly and severally agree, for the benefit of each Creditor, that
any legal action or proceedings arising out of or in connection with this
Agreement against the Borrowers or either of them or any of their assets may be
brought in the English courts. Each of the Borrowers irrevocably and
unconditionally submits to the jurisdiction of such courts and irrevocably
designates, appoints and empowers Ince & Co at present of Xxxxxxxxxxxxx
Xxxxx, 0 Xx. Xxxxxxxxx’s Way, Xxxxxx X0X 0XX, Xxxxxxx to receive for it and on
its behalf, service of process issued out of the English courts in any such
legal action or proceedings. The submission to such jurisdiction
shall not (and shall not be construed so as to) limit the right of any Creditor
to take proceedings against either of the Borrowers in the courts of any other
competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
The
parties further agree that only the courts of England and not those of any other
State shall have jurisdiction to determine any claim which either of the
Borrowers may have against any Creditor arising out of or in connection with
this Agreement.
|
18.3
|
Contracts
(Rights of Third Parties) Xxx 0000
|
No term
of this Agreement is enforceable under the Contracts (Rights of Third Parties)
Xxx 0000 by a person who is not a party to this Agreement.
IN WITNESS
whereof the parties to this Agreement have caused this Agreement to be duly
executed on the date first above written.
60
Schedule 1
The
Banks and their Commitments
|
Name
|
Lending
Office
|
Address
for Notices
|
Commitment
($)
|
|
DnB
NOR Bank ASA
|
00 Xx.
Xxxxxxx’x Xxxx
Xxxxxx XX0X
0XX
Xxxxxxx
|
00 Xx.
Xxxxxxx’x Xxxx
Xxxxxx XX0X
0XX
Xxxxxxx
Fax no:
x00 000
000 0000
Att:
Shipping
Department
|
101,150,000
|
|
TOTAL
COMMITMENT
|
101,150,000
|
||
61
Schedule 2
Form
of Drawdown Notice
(referred
to in clause 2.4)
To:
DnB NOR Bank ASA
00 Xx Xxxxxxx’x
Xxxx
London EC3R
8HY
England
(as
Agent)
[·] 200[·]
U.S.$101,150,000
Loan
Loan
Agreement dated [·]
2007 (the “Loan Agreement”)
We
refer to the above Loan Agreement and hereby give you notice that we wish to
draw down the [Saldanha] [Avoca] Advance, namely $· on
[ ]
200[·] and select the
first interest period in respect thereof to expire on [·]. The funds
should be credited to [name and
number of account] with [details of bank in New York
City].
We
confirm that:
|
(a)
|
no
event or circumstance has occurred and is continuing which constitutes a
Default;
|
|
(b)
|
the representations and warranties contained in (i)
clauses 7.1, 7.2 and 7.3(b)
of the Loan Agreement and (ii) clause 4 of the Corporate Guarantee, are
true and correct at the date hereof as if made with respect to the facts
and circumstances existing at such
date;
|
|
(c)
|
the
borrowing to be effected by the drawdown of the [Saldanha] [Avoca] Advance
will be within our corporate powers, has been validly authorised by
appropriate corporate action and will not cause any limit on our
borrowings (whether imposed by statute, regulation, agreement or
otherwise) to be exceeded;
|
|
(d)
|
there
has been no material adverse change in our business, management, assets,
operations, results of operations, properties, performances, prospects or
the condition (financial or otherwise) from that existing on the date of
the Loan Agreement as described by us or any other Security Party to the
Agent and/or the Arranger in the negotiation of the Loan Agreement;
and
|
|
(e)
|
we
will use the proceeds of the [Saldanha] [Avoca] Advance for our benefit
and under our full responsibility and exclusively for the purpose
specified in the Loan Agreement.
|
Words
and expressions defined in the Loan Agreement shall have the same meanings where
used.
…………………………………..
For and
on behalf of
TEAM-UP
OWNING COMPANY LIMITED
.................................................
For and
on behalf of
ORPHEUS
OWNING COMPANY LIMITED
62
Schedule 3
Documents
and evidence required as conditions precedent to the Loan being
made
(referred to in clause 9.1)
Part
1
|
|
1
|
Constitutional
documents
|
copies,
certified by the legal adviser of each Security Party as true, complete and up
to date copies of all documents which contain or establish or relate to the
constitution of that Security Party;
|
|
2
|
Corporate
authorisations
|
copies
of resolutions of the directors and (except for the Corporate Guarantor) the
shareholders of each Security Party approving such of the Underlying Documents
and the Security Documents to which such Security Party is, or is to be, party
and authorising the signature, delivery and performance of such Security Party's
obligations thereunder, certified (in a certificate dated no earlier than five
(5) Banking Days prior to the date of this Agreement) by an officer of such
Security Party as:
|
|
(a)
|
being
true and correct;
|
|
|
(b)
|
being
duly passed at meetings of the directors of such Security Party and of the
shareholders of such Security Party each duly convened and
held;
|
|
|
(c)
|
not
having been amended, modified or revoked;
and
|
|
|
(d)
|
being
in full force and effect,
|
together
with originals or certified copies of any powers of attorney issued by any such
Security Party pursuant to such resolutions;
|
|
3
|
Specimen
signatures
|
copies
of the signatures of the persons who have been authorised on behalf of each
Security Party to sign such of the Underlying Documents and the Security
Documents to which such Security Party is, or is to be, party and to give
notices and communications, including notices of drawing, under or in connection
with the Security Documents, certified (in a certificate dated no earlier than
five (5) Banking Days prior to the date of this Agreement) by an officer of such
Security Party as being the true signatures of such persons;
|
|
4
|
Certificates
of incumbency
|
a list
of directors and officers of each Security Party specifying the names and
positions of such persons, certified (in a certificate dated no earlier than
five (5) Banking Days prior to the date of this Agreement) by the legal adviser
of such Security Party to be true, complete and up to date;
63
|
|
5
|
Borrowers’
consents and approvals
|
a
certificate (dated no earlier than five (5) Banking Days prior to the date of
this Agreement) from an officer of each of the Borrowers that no consents,
authorisations, licences or approvals are necessary for that Borrower to
authorise or are required by that Borrower in connection with the borrowing by
that Borrower of the Loan pursuant to this Agreement or the execution, delivery
and performance of that Borrower's Security Documents;
|
|
6
|
Other
consents and approvals
|
a
certificate (dated no earlier than five (5) Banking Days prior to the date of
this Agreement) from an officer of each Security Party (other than the
Borrowers) that no consents, authorisations, licences or approvals are necessary
for such Security Party to guarantee and/or grant security for the borrowing by
the Borrowers of the Total Commitment pursuant to this Agreement and execute,
deliver and perform the Security Documents insofar as such Security Party is a
party thereto;
|
|
7
|
Due
diligence
|
evidence
that all information required in relation to any Security Party in order for the
Agent and each Bank to complete its due diligence formalities in connection with
this Agreement and the other Security Documents has been provided and is
satisfactory in all respects to the Agent;
|
|
8
|
Money
laundering
|
such
documentation and other evidence as is reasonably requested by the Agent in
order for each Creditor to carry out and be satisfied with the results of all
necessary "know your client" or other checks which it is required to carry out
in relation to the transactions contemplated by this Agreement and the other
Security Documents and to the identity of any parties to the Security Documents
(other than the Creditors) and their directors and officers;
|
|
9
|
Certified
Underlying Documents
|
a copy,
certified (in a certificate dated no earlier than (5) five Banking Days prior to
the date of this Agreement) as a true and complete copy by the legal adviser of
each of the Borrowers of each of the Management Agreements and the
Contracts;
|
10
|
Xxxxxxxx
Islands opinion
|
an
opinion of Poles, Tublin, Stratakis, Xxxxxxxx & Weichert, LLP, special legal
advisers on matters of Xxxxxxxx Islands law to the Agent;
|
11
|
Liberian
opinion
|
an
opinion of Poles, Tublin, Stratakis, Xxxxxxxx & Weichert, LLP, special legal
advisers on matters of Liberian law to the Agent;
|
12
|
Further
opinions
|
any
such further opinion as may be required by the Agent;
|
13
|
Operating
Accounts
|
evidence
that the Operating Accounts have been opened together with mandate forms in
respect thereof and each of them has a credit balance of at least
$10;
64
|
14
|
Security
Documents
|
the Fee
Letter, the Master Swap Agreement, the Corporate Guarantee, the Operating
Account Assignments and the Swap Assignment, each duly executed;
|
15
|
Fees
|
evidence
that any fees and commission due under clause 5.1 have been paid in
full;
|
16
|
Borrowers'
process agent
|
a letter from
each Borrower's agent for receipt of service of proceedings referred to in
clause 18.2 accepting its appointment under the said clause and under
each of the other Security Documents in which it is or is to be appointed as
such Borrower's agent; and
|
17
|
Security
Parties’ process agent
|
a
letter from each Security Party’s agent for receipt of service of proceedings
accepting its appointment under each of the Security Documents in which it is or
is to be appointed as such Security Party’s agent.
65
Part
2
|
|
1
|
Ship
conditions
|
Evidence
that the Ship (the “Relevant
Ship”) to which the Advance to be drawn down relates (the “Relevant
Advance”):
|
1.1
|
Registration
and Encumbrances
|
is
permanently registered in the name of the relevant Borrower under the laws and
flag of the relevant Flag State through the relevant Registry and that the
Relevant Ship and its Earnings, Insurances and Requisition Compensation (each as
defined in the relevant Ship Security Documents) are free of
Encumbrances;
|
1.2
|
Classification
|
maintains
the relevant Classification free of all requirements and recommendations of the
relevant Classification Society; and
|
1.3
|
Insurance
|
is
insured in accordance with the provisions of the relevant Ship Security
Documents and all requirements of such Ship Security Documents in respect of
such insurance have been complied with (including without limitation,
confirmation from the protection and indemnity association or other insurer with
which the Relevant Ship is, or is to be, entered for insurance or insured
against protection and indemnity risks (including oil pollution risks) that any
necessary declarations required by the association or insurer for the removal of
any oil pollution exclusion have been made and that any such exclusion does not
apply to the Relevant Ship);
|
|
2
|
Ship
Security Documents
|
the
Ship Security Documents for the Relevant Ship, together with the other documents
to be delivered to the Security Agent pursuant thereto, duly
executed;
|
|
3
|
Title
and deletion
|
evidence
that the transfer of title to the Relevant Ship from the relevant
Seller to the relevant Borrower has been duly recorded at the relevant Registry
free of Encumbrances and that the prior registration of such Ship (if any) in
the name of the relevant Seller has been or within a period of seven (7) days
following the Delivery Date of such Ship, will be cancelled and that no
Encumbrances are registered against such Ship prior register;
|
|
4
|
Mortgage
registration
|
evidence
that the relevant Mortgage has been permanently registered against the Relevant
Ship under the laws and flag of the relevant Flag State through the relevant
Registry;
|
|
5
|
Registration
forms
|
such
statutory forms duly signed by the Borrowers and the other Security Parties as
may be required by the Agent to perfect the security contemplated by the
Security Documents;
|
|
6
|
Notices
of assignment and acknowledgements
|
copies
of duly executed notices of assignment and acknowledgements thereof in the forms
prescribed by the relevant Ship Security Documents in respect of the Relevant
Ship;
66
|
|
7
|
Xxxxxxxx
Islands opinion
|
an
opinion of Poles, Tublin, Stratakis, Xxxxxxxx & Weichert, LLP, special legal
advisers on matters of Xxxxxxxx Islands law to the Agent;
|
|
8
|
Liberian
opinion
|
an
opinion of Poles, Tublin, Stratakis, Xxxxxxxx & Weichert, LLP, special legal
advisers on matters of Liberian law to the Agent;
|
|
9
|
Maltese
opinion
|
an
opinion of Ganado & Associates, special legal advisers on matters of Maltese
law to the Agent;
|
10
|
Further
opinions
|
any
such further opinion as may be required by the Agent;
|
11
|
Insurance
opinion
|
an
opinion from insurance consultants to the Agent on the insurances effected or to
be effected in respect of the Relevant Ship upon and following the relevant
Drawdown Date of the Relevant Advance in form and substance satisfactory to the
Agent;
|
12
|
Xxxx
of sale and delivery documents
|
a copy,
certified as a true and complete copy by an officer or a legal advisor of the
Borrowers, of a duly executed and notarised/legalised xxxx of sale in respect of
the Relevant Ship evidencing the full Contract Price for the Relevant Ship and
the other delivery documents duly executed and exchanged pursuant to the
relevant Contract;
|
13
|
Readiness
and payment of Contract Price
|
evidence
that the Relevant Ship is in all respects ready for delivery pursuant to the
relevant Contract and that the relevant Contract Price for the Relevant Ship has
been paid in full;
|
14
|
ISPS
Code compliance
|
|
14.1
|
evidence
satisfactory to the Agent that the Relevant Ship is subject to a ship
security plan which complies with the ISPS Code;
and
|
|
14.2
|
a
copy certified (in a certificate dated no later than seven (7) Banking
Days after the Delivery Date of the Relevant Ship) as a true and complete
copy by an officer or a legal advisor of the Borrowers
of the ISSC for the Relevant Ship and the continuous synopsis record
required by the ISPS Code in respect of the Relevant
Ship;
|
|
15
|
SMC/DOC
|
a copy,
certified (in a certificate dated no later than seven (7) Banking Days after the
Delivery Date of the Relevant Ship) as a true and complete copy by an officer of
the Borrowers of the DOC issued to the Operator of the Relevant Ship and the SMC
for the Relevant Ship;
67
|
16
|
Valuation
|
a
valuation of the Relevant Ship, made (at the cost of the Borrowers) by an
Approved Shipbroker nominated by the Borrowers (or, failing this, by the Agent)
and appointed by the Agent, demonstrating the market value of such Ship, on the
basis and in the manner set out in clause 8.2.2; and
|
17
|
Further
matters/conditions
|
any
such other matter or conditions as may be required by the Agent.
68
Schedule 4
Form
of Transfer Certificate
(referred
to in clause 15.3)
TRANSFER
CERTIFICATE
Banks
are advised not to employ Transfer Certificates or otherwise to assign or
transfer interests in the Loan Agreement without further ensuring that the
transaction complies with all applicable laws and regulations, including the
Financial Services and Markets Xxx 0000 and regulations made thereunder and
similar statutes which may be in force in other jurisdictions
|
To:
|
DNB
NOR BANK ASA as agent on its own behalf and on behalf of the Borrowers,
the Account Bank, the Security Agent, the Arranger, the Swap Provider and
the Banks defined in the Loan Agreement referred to
below.
|
[Date]
Attention: [·]
This
certificate (“Transfer
Certificate”) relates to a loan agreement dated [·] December 2007 (the “Loan Agreement”) and made
between (1) Team-Up Owning Company Limited and Orpheus Owning Company Limited as
joint and several borrowers (the “Borrowers”), (2) the banks and
financial institutions set out in schedule 1 thereto as banks (the “Banks”) and (3) DnB NOR Bank
ASA as Arranger, Agent, Security Agent, Swap Provider and Account Bank, in
relation to a loan of up to $101,150,000. Terms defined in the Loan
Agreement shall, unless otherwise defined herein, have the same meanings herein
as therein.
In this
Certificate:
the
“Transferor” means
[full name] of [lending office];
and
the
“Transferee” means
[full name] of [lending office].
|
|
1
|
The
Transferor with full title guarantee assigns to the Transferee absolutely
all rights and interests (present, future or contingent) which the
Transferor has as a Bank under or by virtue of the Loan Agreement and all
the Security Documents in relation to that part of the [Contribution]
[Available Commitment] of the Transferor (or its predecessors in title)
details of which are set out below:
|
|
Date
of Advances
|
Amount
of Advance
|
Transferor’s
[Contribution] [Available Commitment]
to
Advance
|
Maturity
Date
|
|
|
2
|
By
virtue of this Transfer Certificate and clause 15 of the Loan
Agreement, the Transferor is discharged [entirely from its [Contribution]
[Commitment] which amounts to
$[ ]] [from
[ ] per cent ([ ]%) of its
[Contribution] [Commitment] in respect of both Advances], which percentage
represents
$[ ]].
|
69
|
|
3
|
The
Transferee hereby requests the Borrowers, the Agent (on behalf of itself,
the Account Bank, the Arranger, the Security Agent, the Swap Provider and
the Banks) to accept the executed copies of this Transfer Certificate as
being delivered pursuant to and for the purposes of clause 15.3 of
the Loan Agreement so as to take effect in accordance with the terms
thereof on [date of
transfer].
|
|
|
4
|
The
Transferee:
|
|
4.1
|
confirms
that it has received a copy of the Loan Agreement and the other Security
Documents together with such other documents and information as it has
required in connection with the transaction contemplated
thereby;
|
|
4.2
|
confirms
that it has not relied and will not hereafter rely on the Transferor, the
Agent, the Security Agent, the Swap Provider, the Arranger, the Account
Bank or the other Banks to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
the Loan Agreement, any of the Security Documents or any such documents or
information;
|
|
4.3
|
agrees
that it has not relied and will not rely on the Transferor, the Agent, the
Security Agent, the Arranger, the Account Bank, the Swap Provider or the
Banks to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the
Borrowers or either of them or any other Security Party (save as otherwise
expressly provided therein);
|
|
4.4
|
warrants
that it has power and authority to become a party to the Loan Agreement
and has taken all necessary action to authorise execution of this Transfer
Certificate and to obtain all necessary approvals and consents to the
assumption of its obligations under the Loan Agreement and the Security
Documents; and
|
|
4.5
|
if
not already a Bank, appoints (i) the Agent to act as its agent and (ii)
the Security Agent to act as its security agent and trustee, in each case
as provided in the Loan Agreement and the Security Documents and agrees to
be bound by the terms of the Loan Agreement and the other Security
Documents.
|
|
|
5
|
The
Transferor:
|
|
5.1
|
warrants
to the Transferee that it has full power to enter into this Transfer
Certificate and has taken all corporate action necessary to authorise it
to do so;
|
|
5.2
|
warrants
to the Transferee that this Transfer Certificate is binding on the
Transferor under the laws of England, the country in which the Transferor
is incorporated and the country in which its lending office is located;
and
|
|
5.3
|
agrees
that it 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 Transfer Certificate or for a similar
purpose.
|
|
|
6
|
The
Transferee hereby undertakes with the Transferor and each of the other
parties to the Loan Agreement and the other Security Documents that it
will perform in accordance with its terms all those obligations which by
the terms of the Loan Agreement and the other Security Documents will be
assumed by it after delivery of the executed copies of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take
effect.
|
70
|
|
7
|
By
execution of this Transfer Certificate on their behalf by the Agent and in
reliance upon the representations and warranties of the Transferee, the
Borrowers, the Account Bank, the Arranger, the Security Agent, the Swap
Provider and the Banks accept the Transferee as a party to the Loan
Agreement and the Security Documents with respect to all those rights
and/or obligations which by the terms of the Loan Agreement and the
Security Documents will be assumed by the Transferee (including those
about pro-rata sharing and the exclusion of liability on the part of, and
the indemnification of, the Agent, the Arranger, the Account Bank, the
Swap Provider and the Security Agent as provided by the Loan Agreement)
after delivery of the executed copies of this Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which this
Transfer Certificate is expressed to take
effect.
|
|
|
8
|
None
of the Transferor, the Agent, the Security Agent, the Account Bank, the
Arranger, the Swap Provider or the
Banks:
|
|
8.1
|
makes
any representation or warranty nor assumes any responsibility with respect
to the legality, validity, effectiveness, adequacy or enforceability of
the Loan Agreement or any of the Security Documents or any document
relating thereto; or
|
|
8.2
|
assumes
any responsibility for the financial condition of the Borrowers or either
of them or any other Security Party or any party to any such other
document or for the performance and observance by the Borrowers or either
of them or any other Security Party or any party to any such other
document (save as otherwise expressly provided therein) and any and all
such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded (except as
aforesaid).
|
|
|
9
|
The
Transferor and the Transferee each undertake that they will on demand
fully indemnify the Agent in respect of any claim, proceeding, liability
or expense which relates to or results from this Transfer Certificate or
any matter concerned with or arising out of it unless caused by the
Agent’s gross negligence or wilful misconduct, as the case may
be.
|
|
|
10
|
The
agreements and undertakings of the Transferee in this Transfer Certificate
are given to and for the benefit of and made with each of the other
parties to the Loan Agreement and the Security
Documents.
|
|
|
11
|
This
Transfer Certificate is governed by, and shall be construed in accordance
with, English law.
|
|
Transferor
|
Transferee
|
|
By:
………………………………………………
|
By:
………………………………………………
|
|
Dated:
……………………………………………
|
Dated:
……………………………………………
|
Agent
Agreed
for and on behalf of itself as Agent, the Borrowers, the Security Agent, the
Account Bank, the Arranger, the Swap Provider and the Banks.
DNB
NOR BANK ASA
By: ………………………………………
Dated: ………………………………………
Note: The
execution of this Transfer Certificate alone may not transfer a proportionate
share of the Transferor’s interest in the security constituted by the Security
Documents in the Transferor’s or Transferee’s jurisdiction. It is the
responsibility of the Transferee to ascertain whether any other documents are
required to perfect a transfer of such a share in the Transferor’s interest in
such security in any such jurisdiction and, if so, to seek appropriate advice
and arrange for execution of the same.
71
The
Schedule
Outstanding
Contribution: $•
Available
Commitment: $•
Portion
Transferred: •%
Administrative
Details of Transferee
Name of
Transferee:
Lending
Office:
Contact
Person
(Loan
Administration Department):
Telephone:
Telefax
No:
Contact
Person:
(Credit
Administration Department):
Telephone:
Telefax
No:
Account
for payments:
72
Schedule 5
Form
of Trust Deed
THIS
DECLARATION OF TRUST made by DNB
NOR BANK ASA (the “Security
Agent”) is made on [·] 2007 and
is supplemental to (and made pursuant to the terms of) a Loan Agreement dated
[·]
2007 (the “Agreement”)
and made between (1) Team-Up Owning Company Limited and Orpheus Owning Company
Limited as joint and several Borrowers, (2) the banks and financial institutions
mentioned in schedule 1 to the Agreement as the Banks and (3) DnB NOR Bank ASA
as Arranger, Agent, Security Agent, Swap Provider and Account
Bank. Words and expressions defined in the Agreement shall have the
same meaning when used in this Deed.
NOW
THIS DEED WITNESSETH as follows:
|
1
|
The
Security Agent hereby acknowledges and declares that, from the date of
this Deed, it holds and shall hold the Trust Property on trust for the
Banks, the Agent and the Swap Provider on the terms and basis set out in
the Agreement.
|
|
2
|
The
declaration and acknowledgement contained in paragraph 1 above shall
be irrevocable.
|
IN WITNESS
whereof the Security Agent has executed this Deed the day and year first
above written.
|
SIGNED. SEALED and DELIVERED
|
)
|
||
|
as
a DEED
|
)
|
||
|
by
|
)
|
Attorney-in-fact
|
|
|
for
and on behalf of
|
)
|
||
| DNB NOR BANK ASA |
)
|
||
| (as Security Agent) | ) |
73
Schedule 6
Mandatory
Cost formula
|
1
|
The
Mandatory Cost is an addition to the interest rate to compensate Banks for
the cost of compliance with (a) the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central
Bank.
|
|
2
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the "Additional Cost Rate")
for each Bank, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Banks' Additional Cost Rates (weighted in
proportion to the percentage participation of each Bank in the Loan or any
relevant unpaid sum) and will be expressed as a percentage rate per
annum.
|
|
3
|
The
Additional Cost Rate for any Bank lending from a lending office in a
Participating Member State will be the percentage notified by that Bank to
the Agent. This percentage will be certified by that Bank in
its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Bank's participation in the Loan or the
relevant unpaid sum made from that lending office) of complying with the
minimum reserve requirements of the European Central Bank in respect of
loans made from that lending
office.
|
|
4
|
The
Additional Cost Rate for any Bank lending from a lending office in the
United Kingdom will be calculated by the Agent as
follows:
|
Where
E is designed to
compensate Banks for amounts payable under the Fees Rules and is calculated by
the Agent as being the average of the most recent rates of charge supplied by
the Reference Banks to the Agent pursuant to paragraph 6 below and expressed in
pounds per £1,000,000.
|
5
|
For
the purposes of this Schedule:
|
|
|
(a)
|
"Fees Rules" means the
rules on periodic fees contained in the FSA Supervision Manual or such
other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of
deposits;
|
|
|
(b)
|
"Fee Tariffs" means the
fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate);
|
|
|
(c)
|
“Participating Member
State” means any member of the European Union that adopts or has
adopted the euro as its lawful currency in accordance with the legislation
of the European Community relating to the Economic and Monetary
Union;
|
|
|
(d)
|
"Special Deposits" has
the meaning given to it from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of England;
and
|
|
|
(e)
|
"Tariff Base" has the
meaning given to it in, and will be calculated in accordance with, the
Fees Rules.
|
74
|
6
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per £1,000,000 of the Tariff Base of that Reference
Bank.
|
|
7
|
Each
Bank shall supply any information required by the Agent for the purpose of
calculating its Additional Cost Rate. In particular, but
without limitation, each Bank shall supply the following information on or
prior to the date on which it becomes a
Bank:
|
|
|
(a)
|
the
jurisdiction of its lending office;
and
|
|
|
(b)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Bank shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
|
8
|
The
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 6 and 7 above and on the assumption that, unless a Bank
notifies the Agent to the contrary, each Bank's obligations in relation to
cash ratio deposits and Special Deposits are the same as those of a
typical bank from its jurisdiction of incorporation with a lending office
in the same jurisdiction as its lending
office.
|
|
9
|
The
Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Bank and
shall be entitled to assume that the information provided by any Bank or
Reference Bank pursuant to paragraphs 3, 6 and 7 above is true and correct
in all respects.
|
|
10
|
The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Banks on the basis of the Additional Cost Rate for
each Bank based on the information provided by each Bank and each
Reference Bank pursuant to paragraphs 3, 6 and 7
above.
|
|
11
|
Any
determination by the Agent pursuant to this schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Bank shall, in the absence of manifest error, be conclusive and
binding on all parties to this
Agreement.
|
|
12
|
The
Agent may from time to time, after consultation with the Borrower and the
Banks, determine and notify to all parties to this Agreement any
amendments which are required to be made to this schedule in order to
comply with any change in law, regulation or any requirements from time to
time imposed by the Bank of England, the Financial Services Authority or
the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in
the absence of manifest error, be conclusive and binding on all parties to
this Agreement.
|
75
Schedule 7
Form
of Mortgage
76
Form
of Deed of Covenant
77
Schedule 9
Form
of Corporate Guarantee
78
Schedule 10
Form
of Manager’s Undertakings
79
Schedule 11
Form
of Master Swap Agreement
80
Schedule 12
Form
of Swap Assignment
81
Schedule 13
Form
of Operating Account Assignment
82
|
SIGNED
by
|
)
|
||
|
for
and on behalf of
|
)
|
||
|
TEAM-UP
OWNING COMPANY LIMITED
|
)
|
Attorney-in-fact
|
|
|
as
Borrower
|
)
|
||
|
SIGNED
by
|
)
|
||
|
for
and on behalf of
|
)
|
||
|
ORPHEUS
OWNING COMPANY LIMITED
|
)
|
Attorney-in-fact
|
|
|
as
Borrower
|
)
|
||
|
SIGNED
by
|
)
|
||
|
for
and on behalf of
|
)
|
||
|
DNB
NOR BANK ASA
|
)
|
Attorney-in-fact
|
|
|
as
Arranger, Agent, Security Agent,
|
)
|
||
|
Swap
Provider and Account Bank
|
)
|
||
|
SIGNED
by
|
)
|
||
|
for
and on behalf of
|
)
|
||
|
DNB
NOR BANK ASA
|
)
|
Attorney-in-fact
|
|
|
as
Bank
|
)
|
83
