Exhibit 4.4.1
Private & Confidential
Dated 21 December 2006
TOP TANKERS INC. (1)
and
THE ROYAL BANK OF SCOTLAND plc (2)
____________________
FIRST SUPPLEMENTAL AGREEMENT
____________________
XXXXXX XXXX
Contents
Clause Page
1 Definitions..................................................... 1
2 Agreement of the Bank........................................... 2
3 Amendments to Principal Agreement .............................. 2
4 Representations and warranties ................................. 4
5 Conditions ..................................................... 5
6 Security Documents.............................................. 6
Schedule 1 Supplemental Letter (Security Documents).........................9
THIS AGREEMENT is dated fRVR,NRT 2006 and made BETWEEN:
(1) TOP TANKERS INC. with its principal place of business at 1, Vas.
Sofias & Meg. Xxxxxxxxxx Xxx., 000 00 Xxxxxxxx, Xxxxxx (the
"Borrower");
(2) THE ROYAL BANK OF SCOTLAND plc, acting for the purposes of this
Agreement through its office at the Shipping Business Centre, 0-00
Xxxxx Xxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx (the "Bank").
WHEREAS:
(A) this Agreement is supplemental to a facilities agreement dated 1
November 2005 (the "Principal Agreement") made between (1) the
Borrower and (2) the Bank pursuant to which the Bank agreed to make a
term loan facility of up to $195,656,899.82 and a revolving credit
facility of up to $350,000,000 available to the Borrower upon the
terms and conditions set out in the Principal Agreement;
(B) pursuant to clause 2.4.5 of the Principal Agreement a Request has been
made by the Borrower to drawdown a part of Facility B for the purpose
of financing part of the purchase price of four Additional Ships which
are newbuildings;
(C) the Bank has accepted the Borrower's Request and has agreed to make
available four Advances under Facility B each in the amount of five
million eleven thousand six hundred and fifty Dollars ($5,011,650)
(being 70% of the first instalment payable under each of the Contracts
relating to the Additional Ships which are newbuildings) subject to
the terms of the Principal Agreement including, without limitation,
the satisfaction of all relevant conditions precedent;
(D) the Bank and the Borrower confirm and agree that Facility B is in the
current amount of $158,000,000 of which sum $96,000,000 has already
been drawn down; and
(E) the Borrower has requested that the terms of the Principal Agreement
be revised and this Agreement sets out the terms and conditions upon
which the Bank shall, at the request of the Borrower, agree to such
revision.
NOW IT IS HEREBY AGREED as follows:
1 Definitions
1.1 Defined expressions
Words and expressions defined in the Principal Agreement shall unless
the context otherwise requires or unless otherwise defined herein,
have the same meanings when used in this Agreement.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Effective Date" means the date, no later than 22 December 2006, on
which the Bank notifies the Borrower in writing that the Bank has
received the documents and evidence specified in clause 5 in a form
and substance satisfactory to it; and
"Supplemental Letters" means the letters supplemental to the Security
Documents executed or (as the context may require) to be executed by
the Security Parties who are not party to this Agreement in favour of
the Bank in the form set out in Schedule 1.
References in the Principal Agreement to "this Agreement" shall, with
effect from the Effective Date and unless the context otherwise
requires, be references to the Principal Agreement as amended by this
Agreement and words such as "herein", "hereof', "hereunder",
"hereafter", "hereby" and "hereto", where they appear in the Principal
Agreement, shall be construed accordingly.
1.4 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.
1.5 Construction of certain terms
Clause 1.4 of the Principal Agreement shall apply to this agreement
mutatis mutandis as if set out herein and as if references therein to
"this Agreement" were references to this Agreement.
2 Agreement of the Bank
The Bank, relying upon the representations and warranties on the part
of the Borrower contained in clause 4, agrees with the Borrower that,
subject to the terms and conditions of this Agreement and in
particular, but without prejudice to the generality of the foregoing,
fulfilment on or before 22 December 2006 of the conditions contained
in clause 5, the Bank agrees to the amendment of the Principal
Agreement on the terms set out in clause 3.
3 Amendments to Principal Agreement
3.1 Amendments
The Principal Agreement shall, with effect from the Effective Date, be
amended in accordance with the following provisions (and the Principal
Agreement will continue to be binding upon each of the parties hereto
upon such terms as so amended):
3.1.1 by inserting the following new definition in clause 1.2 of the
Principal Agreement in alphabetical order: ""First Supplemental
Agreement" means the agreement dated Zi Deter 2006 supplemental to
this Agreement made between (1) the Borrower and (2) the Bank;";
3.1.2 by inserting the words "and as supplemented and amended by the First
Supplemental Agreement," after the words "means this Agreement" in the
definition of "Security Documents" in clause 1.2 of the Principal
Agreement;
3.1.3 by deleting the definition of "Security Requirement" in clause 1.2 of
the Principal Agreement and inserting the following new definition in
its place:
'"'Security Requirement" means, subject to the provisions of clause
4.5, the amount in Dollars (as certified by the Bank whose certificate
shall, in the absence of manifest error, be conclusive and binding on
the Borrower and the Bank) which is at any relevant time one hundred
and thirty per cent (130%) (or for the purposes of clause 4.5 only one
hundred and sixty seven per cent (167%)) of (a) the Loan and (b) the
notional or actual costs as certified by the Bank in its discretion at
any relevant time of cancelling, netting out, terminating,
liquidating, transferring or assigning the rights, benefits and
obligations created by any Transaction or the Master Swap Agreement;";
3.1.4 by deleting the definition of "Security Value" in clause 1.2 of the
Principal Agreement and inserting the following new definition in its
place:
""Security Value" means the amount in Dollars (as certified by the
Bank whose certificate shall, in the absence of manifest error, be
conclusive and binding on the Borrower and the Bank) which, at any
relevant time, is the aggregate of (a) the charter-free market value
of the Mortgaged Ships as most recently determined in accordance with
clause 8.22; (b) the value of any Additional Ships which are
newbuildings as most recently determined in accordance with clause
8.2.2 less any part of the Contract Price which has not been paid by
the Borrower or the relevant Owner to the relevant Builder under the
relevant Contract; and (c) the market value of any additional security
for the time being actually provided to the Bank pursuant to clause
8.2;";
3.1.5 by deleting the definition of "Ship Security Documents" in clause 1.2
of the Principal Agreement and inserting the following new definition
in its place:
""Ship Security Documents" means in respect of each Ship the relevant
Mortgage, the relevant Deed of Covenant and/or General Assignment, the
relevant Manager's Undertakings and in the case of an Additional Ship
which is a newbuilding the Pre-delivery Security Assignment and "Ship
Security Document" means any of them;";
3.1.6 by deleting clause 2.4.10(a) of the Principal Agreement and inserting
the following wording in its place:
"the ratio of the Loan to the Fair Market Value of all the Mortgaged
Ships not exceeding 75% both prior to and immediately following the
drawdown of the relevant Advance of Facility B; and";
3.1.7 by adding a new clause 8.1.18 as follows:
"8.1.18 Newbuilding
in the case of an Additional Ship which is a newbuilding and in
respect of which the Borrower or the relevant Owner (as appropriate)
is not utilising the facilities made available pursuant to this
Agreement to finance all instalments of the Contract Price or the
entire Contract Price, pay all instalments of the Contract Price or
any part of the Contract Price not being financed under this Agreement
in full and in a timely manner and otherwise in accordance with the
terms of the relevant Contract and will not incur any Borrowed Money
to assist it to finance any part of the Contract Price except for
Borrowed Money pursuant to the Security Documents.";
3.1.8 by deleting clause 10.1.31 and replacing it with the following:
"10.1.31 Non-Delivery of Ship:
a Ship is not delivered to and accepted by the Borrower or the
relevant Owner under a Contract either:
(a) on or before the Termination Date (or such later date as the Bank
in its absolute discretion may agree in writing); and/or
(b) on the date that it is obliged to take Delivery of the relevant
Ship in accordance with any relevant Contract and its failure to
take such Delivery will constitute a breach of the provisions of
the relevant Contract; or";
3.1.9 by adding a new clause 10.1.39 as follows:
"10.1.39 Newbuilding:
the Borrower or the relevant Owner as the case may be fails to pay all
instalments of the Contract Price or any part of the Contract Price
not being financed under this Agreement in full and in a timely manner
and otherwise in accordance with the terms of the relevant Contract
for an Additional Ship which is a newbuilding or the Bank determines
in its reasonable opinion that the Borrower or the relevant Owner will
not be in a position to pay all such instalments of the Contract Price
or any part of the Contract Price not being financed under this
Agreement as aforesaid; and";
3.1.10 by adding a new clause 10.1.40 reading as follows:
"10.1.40 Failure to create a Mortgage:
The Borrower or the relevant Owner fails to execute and register at
the Registry a valid and effective Mortgage over any Additional Ship
which is a newbuilding immediately following Delivery of such
Additional Ship pursuant to the relevant Contract or the Bank
determines in its reasonable opinion that the Borrower or the relevant
Owner will not (or is unlikely to) be able and/or willing to execute
and register at the Registry such Mortgage immediately upon Delivery
of such Additional Ship.";
3.1.11 by deleting clause 16.1.3(a) and replacing it with the following:
"(a) to the Borrower and any Owner at:
c/o Top Tankers Inc.
1, Vas. Sofias & Meg. Xxxxxxxxxx Xxx.
000 00 Xxxxxxxx
Xxxxxx
Fax no: x00 000 000 0000
Attention: Xxx Xxxxxx Xxxxxxxxxxxxxxx";
3.1.12 by inserting the words "(including without limitation in the case of
an Additional Ship which is a newbuilding the Pre-delivery Security
Assignment)" after the words "the Ship Security Documents" in
paragraph (I), Part 3 of Schedule 3 to the Principal Agreement;
3.1.13 by inserting the words "other than with respect to any Refund
Guarantee which the Borrower and/or the relevant Owner shall provide
in original form and which Refund Guarantee shall be in a form and
substance acceptable to the Bank" at the end of paragraph (e), Part 3
of Schedule 3 to the Principal Agreement; and
3.1.14 by deleting the words "clause 9.2" in the heading of Part 4 of
Schedule 3 to the Principal Agreement and replacing them with the
words "clause 9.4".
4 Representations and warranties
4.1 Primary representations and warranties
The Borrower represents and warrants to the Bank that:
4.1.1 Existing representations and warranties the representations and
warranties set out in clause 7 of the Principal Agreement were true
and correct on the date of the Principal Agreement and are true and
correct, including to the extent that they may have been or shall be
amended by this Agreement, as if made at the date of this Agreement
with reference to the facts and circumstances existing at such date;
4.1.2 Corporate power
the Borrower has power to execute, deliver and perform its obligations
under this Agreement and all documents and other instruments to be
executed by it in accordance with this Agreement to which it is or is
to be a party and all necessary corporate, shareholder and other
action has been taken by the Borrower to authorise the execution,
delivery and performance of this Agreement and all documents and other
instruments to which it is or is to be a party;
4.1.3 Binding obligations
this Agreement constitutes valid and legally binding obligations of
the Borrower enforceable in accordance with its terms;
4.1.4 No conflict with other obligations
the execution, delivery and performance of this Agreement by the
Borrower will not (a) contravene any existing law, statute, rule or
regulation or any judgment, decree or permit to which the Borrower is
subject, (b) 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 the Borrower is a party or is subject or by which
it or any of its property is bound, (c) contravene or conflict with
any provision of the constitutional documents of the Borrower or (d)
result in the creation or imposition of or oblige the Borrower to
create any Encumbrance (other than a Permitted Encumbrance) on any of
the undertaking, assets, rights or revenues of the Borrower;
4.1.5 No filings required
it is not necessary to ensure the legality, validity, enforceability
or admissibility in evidence of this Agreement that it 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 this Agreement and this
Agreement is in proper form for its enforcement in the courts of each
Relevant Jurisdiction;
4.1.6 Choice of law
the choice of English law to govern this Agreement and the submission
by the Borrower to the non-exclusive jurisdiction of the English
courts are valid and binding; and
4.1.7 Consents obtained
every consent, authorisation, licence or approval of, or registration
or declaration to, governmental or public bodies or authorities or
courts required by the Borrower in connection with the execution,
delivery, validity, enforceability or admissibility in evidence of
this Agreement or the performance by the Borrower of its obligations
under this Agreement has been obtained or made and is in full force
and effect and there has been no default in the observance of any
conditions or restrictions (if any) imposed in, or in connection with,
any of the same.
4.2 Repetition of representations and warranties
Each of the representations and warranties contained in clause 4.1 of
this Agreement and clause 7 of the Principal Agreement shall be deemed
to be repeated by the Borrower on the date of execution of this
Agreement as if made with reference to the facts and circumstances
existing on such day.
5 Conditions
5.1 Documents and evidence
The agreement of the Bank referred to in clause 2 shall be subject to
the receipt by the Bank of the following conditions precedent in a
form and substance satisfactory to the Bank in its sole discretion:
5.1.1 the Supplemental Letters duly executed;
5.1.2 evidence as to the due authority of the person(s) signing and/or
executing this Agreement and the Supplemental Letters hereto;
5.1.3 evidence that the Borrower has properly and validly executed this
Agreement and is binding upon it;
5.1.4 evidence that each Security Party has properly and validly executed a
Supplemental Letter in relation to those Security Documents to which
it is a party and is binding upon it;
5.1.5 evidence that the Borrower and each of the other Security Parties has
obtained all consents and authorisations necessary to enable each of
them to enter into this Agreement in the case of the Borrower and the
Supplemental Letters in the case of the Security Parties and all
documents and other instruments to be executed by each of them in
connection therewith or pursuant thereto;
5.1.6 evidence that the Borrower is in good standing under the laws of the
Xxxxxxxx Islands and that each Owner is in good standing under the
laws of the Relevant Jurisdiction;
5.1.7 if so required by the Bank, legal opinions in relation to the laws of
the Xxxxxxxx Islands and Liberia in favour of the Bank confirming
(inter alia) the due execution of this Agreement and the Supplemental
Letters; and
5.1.8 an original or certified true copy of a letter from the Borrower's
agent for receipt of service of proceedings accepting its appointment
under this Agreement as the Borrower's process agent.
5.2 General conditions precedent
The agreement of the Bank referred to in clause 2 shall be further
subject to:
5.2.1 the representations and warranties in clause 4 being true and correct
on the Effective Date as if each was made with respect to the facts
and circumstances existing at such time; and
5.2.2 no Default having occurred and continuing at the time of the
Effective Date.
5.3 Waiver of conditions precedent
The conditions specified in this clause 5 are inserted solely for the
benefit of the Bank and may be waived by the Bank in whole or in part
with or without conditions.
6 Security Documents
The Borrower further acknowledges and agrees, for the avoidance of
doubt, that:
6.1.1 each of the Security Documents to which it is a party, and its
obligations thereunder, shall remain in full force and effect
notwithstanding the amendments made to the Principal Agreement by this
Agreement; and
6.1.2 with effect from the Effective Date, references to "the Agreement" or
"the Loan Agreement" in any of the Security Documents to which it is a
party shall henceforth be reference to the Principal Agreement as
amended by this Agreement and as from time to time hereafter amended.
7 Expenses
The Borrower hereby undertakes to pay all legal and other expenses or
disbursements incurred by the Bank in the negotiation, preparation and
execution of this Agreement and in connection with the fulfilment of
the conditions specified in clause 5.
8 Miscellaneous and notices
8.1 Notices
The provisions of clause 16.1 of the Principal Agreement shall extend
and apply to the giving or making of notices or demands hereunder as
if the same were expressly stated herein.
8.2 Third Party Rights
No term of this Agreement shall be enforceable pursuant to the
Contracts (Rights of Third Parties) Xxx 0000 by a person who is not a
party to this Agreement.
8.3 Counterparts
This Agreement may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so
executed and delivered shall be an original but all counterparts shall
together constitute one and the same instrument.
9 Law and jurisdiction
This Agreement shall be governed by, and construed in accordance with,
English law and the provisions of clause 17 of the Principal Agreement
shall be deemed incorporated herein mutatis mutandis as if the same
were expressly stated herein.
IN WITNESS WHEREOF the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
SIGNED for and on behalf of ) /s/ Stamotis Tsautauis
TOP TANKERS INC. ) -----------------------
by Stamotis Tsautouis ) Attorney-in-fact
SIGNED for and on behalf of ) /s/ Graham Locker
THE ROYAL BANK OF SCOTLAND plc ) -----------------------
by Graham Locker ) Authorized Signature
