EX-4.47
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g12625exv4w47.htm
EX-4.47 SHORT TERM LOAN AGREEMENT
Exhibit 4.47
SHORT-TERM LOAN AGREEMENT IN EUROS
AND OPTIONAL CURRENCIES
This agreement is made between the undersigned:
| 1. | | Adventure Two S.A., established in Majuro, Xxxxxxxx Islands,
Adventure Three S.A., established in Majuro, Xxxxxxxx Islands,
Adventure Seven S.A., established in Majuro, Xxxxxxxx Islands,
hereinafter (together and individually) referred to as ‘the Borrower’, |
and
| 2. | | HOLLANDSCHE BANK-UNIE N.V.,
having its registered office in Rotterdam,
hereinafter referred to as ‘the Bank’. |
Whereas:
The Bank has offered by the Credit Agreement dated 11 January 2008 to grant the Borrower, until
further notice, a short-term loan facility, subject to the terms and conditions mentioned in that
Credit Agreement, including the conclusion of a relevant agreement between the parties.
It is hereby agreed as follows:
| | | Article 1 Loan period and currency |
| |
| 1.1 | | Under the short-term loan facility, the Borrower shall be entitled to draw short-term loans
at the Bank in euros or optional currencies for periods ranging from fourteen days to twelve
months, as determined by the Borrower. Short-term loans drawn for periods longer than three
months shall require the Bank’s prior consent. |
| |
| 1.2 | | In this agreement, optional currency shall mean a currency that is freely convertible into
euros and freely transferable and which in the opinion of the Bank is generally and freely
dealt in on the London interbank money market. |
| |
| 1.3 | | The Bank shall not be obliged to grant a short-term loan upon the occurrence of any event
mentioned in 6.1 below. |
| |
| | | Article 2 Loan amount |
| |
| 2.1 | | Short-term loans shall be a minimum of EUR 500,000 (five hundred thousand euros) or the
equivalent in the relevant optional currency. In addition, short-term loans may only be drawn
in a multiple of EUR 100,000 (one hundred thousand euros) or the equivalent in the relevant
optional currency (to be rounded in the manner to be determined by the Bank). |
| |
| 2.2 | | The equivalent of optional currencies shall be calculated at the Bank’s spot buying rate for
the conversion of euros into the optional currency in question at the time when the short-term
loan is concluded, two business days prior to the drawing of the short-term loan in question.
With a view to the exchange risk on short-term optional currency loans, the available amount
under the |
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| | | short-term loan facility shall be reduced by a certain percentage of any short-term optional
currency loan amount. This percentage shall be determined by the Bank for each short-term
loan individually. |
| |
| | | Article 3 Fixing of interest on euro loans |
| |
| 3.1 | | If the Borrower wishes to draw a short-term loan in euros
under the short-term loan facility, he shall notify the Bank by telephone before 11.30 a.m. (Central
European Time) on the day of the intended drawing and at the same time state loan amount,
currency and loan period. |
| |
| 3.2 | | During, or immediately after the telephone call referred to in 3.1 above, the Bank shall
quote the interest rate at which it is willing to grant the short-term loan requested. If the
Bank and the Borrower then reach agreement upon the interest rate,
the Bank shall confirm the short-term loan it has granted to the Borrower in writing or by fax or another customer
datacommunication system of the Bank’s choice to which the Borrower is linked, stating loan
amount, currency, loan period and interest rate as well as the account on which the
short-term loan shall be made available to the Borrower. If the parties shall fail to reach
agreement, this shall mean a return to the situation prior to the notice by telephone
referred to in 3.1 above. |
| |
| | | Article 4 Fixing of interest on optional currency loans |
| |
| 4.1 | | If the Borrower wishes to draw a short-term loan in an optional currency under the short-term
facility, he shall notify the Bank by telephone before 3.30 p.m. (Central European Time) two
business days prior to the day of the intended drawing and at the same time state loan amount,
currency and loan period. In this section, business day shall mean a day on which banking
institutions in London, New York and the country where the optional currency in question is
the national unit, are open for business. |
| |
| 4.2 | | During, or immediately after the telephone call referred to in 4.1 above, the Bank shall
quote the interest rate at which it is willing to grant the short-term loan requested. If the
Bank and the Borrower then reach agreement upon the interest rate,
the Bank shall confirm the short-term loan it has granted to the Borrower in writing or by fax or another customer
datacommunication system of the Bank’s choice to which the Borrower is linked, stating loan
amount, currency, loan period and interest rate as well as the account on which the
short-term loan shall be made available to the Borrower. If the parties shall fail to reach
agreement, this shall mean a return to the situation prior to the notice by telephone
referred to in 4.1 above. |
| |
| | | Article 5 Interest and principal |
| |
| | | The Borrower shall pay interest on any short-term loan at the rate fixed in the way described
in 3 and 4 above, together with the repayment of the short-term loan in question. Interest
shall be calculated on the basis of the actual number of days elapsed and a year of 360 days
or 365 days, dependent on the desired currency. Each short-term loan shall be repaid on the
last day of the loan period. Premature repayment is not permitted. |
| |
| | | Article 6 Events of default |
| |
| 6.1 | | All short-term loans together with accrued interest and any other sum due from the Borrower
under this agreement will be due to the Bank forthwith and in full, without demand notice or
any other formality being required: |
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| | a. | | if the Borrower defaults on any obligation towards the Bank at the time and in
the manner required; |
| |
| | b. | | if the Borrower’s legal structure is changed and/or the Borrower effects a merger
or demerger, ceases to exist, ceases to pursue the corporate objects set out in his
memorandum and articles of association, decides to liquidate his business or loses his
legal status; |
| |
| | c. | | if the Borrower applies for a moratorium or other judicial postponement of
payment of debts, presents a bankruptcy or winding-up petition, is adjudicated bankrupt
or wound-up or proposes an extrajudicial arrangement or composition with his creditors; |
| |
| | d. | | if any immovable properties of the Borrower or his consolidated subsidiaries are
taken in execution or attached by way of security and this attachment is not lifted or
discharged within thirty days; if the whole or, in the opinion of the Bank, a
substantial part of the movable and/or immovable properties is lost, damaged,
expropriated or confiscated; |
| | | without prejudice to the Bank’s right at any time to take all such measures provided by law
as it shall deem necessary or appropriate to protect its rights or to recover the Borrower’s
debt to it. |
| |
| 6.2 | | The Borrower shall forthwith notify the Bank of the occurrence of any circumstances mentioned
under b, c and d in 6.1 above. |
| |
| | | Article 7 Compensation |
| |
| | | If the Bank calls in the short-term loan by virtue of the provisions contained in 6.1 above,
the Borrower shall be due to the Bank lump sum compensation of 1.5% (one and a half per cent)
of the amount the payment of which is demanded by the Bank. |
| |
| | | Article 8 Default Interest |
| |
| | | Without prejudice to the provisions contained in 6 and 7 above, the Borrower shall be liable,
in the event of late payment of any sum due under this agreement, to pay default interest on
the overdue amount as from the due date until the date of actual payment in full. The rate of
such default interest shall be 2 percentage points above the interest rate applicable to the
short-term loan in question as referred to in 5 above and may be further increased by the
difference adverse to the Bank between the interest rate referred to in 5 above and, in the
case of a short-term loan in euros, the weighted average of the official offered rate (Euro
Overnight Index Average) as determined on each day of late payment at 7.00 p.m. (Central
European Time) or, in the case of short-term optional currency loans, the debit interest rate
charged to the Bank in the country where the optional currency in question is the national
unit, plus any additional costs and expenses. Default interest resulting from this article
shall be due and calculated as from the due date until the date of actual payment. |
| |
| | | Article 9 Payments |
| |
| 9.1 | | The Borrower shall make all payments due under this agreement on the due dates at the Bank’s
branch where the short-term loan is accounted for or at any other address for payment the Bank
has notified to the Borrower. The Bank reserves the right to designate other addresses for
payment. The Borrower shall make the payments without set-off or counterclaim and without any
deduction for or on account of any taxes of whatever nature now or hereafter imposed or levied
by or under the authority of the government of any country in which the Borrower shall be
resident. This shall not apply, however, if any such taxes shall at any time be required to be |
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| | | withheld or deducted from any payment to be made by the Borrower, in which case the Borrower
shall pay such additional amounts as shall be necessary to ensure that the net amount
received by the Bank equals the amount payable under the terms and conditions of this
agreement. |
| |
| 9.2 | | If a euro amount shall become payable on a day on which banking institutions in the
Netherlands are closed and which is not a Saturday, such payment shall be made on the next
succeeding day on which those institutions are open for business. If the result of such
extension would be to carry the payment over into another calendar month, payment shall be
made on the last day of the relevant month on which those banking institutions are open for
business. |
| |
| 9.3 | | If any optional currency amount shall become payable on a day on which banking institutions
in London, New York and/or the country where the currency in question is the national unit,
are closed, such payment shall be made on the next succeeding day on which those institutions
are open for business. If the result of such extension would be to carry the payment over into
another calendar month, payment shall be made on the last day of the relevant month on which
those banking institutions are open for business. |
| |
| 9.4 | | The Bank shall be entitled but not obliged to debit all amounts that are due and payable by
the Borrower to the Bank in respect of the short-term loans, from the Borrower’s current
account at the Bank, without prejudice to the Borrower’s obligation to ensure that such debit
would not cause the current account to show an unauthorised debit balance. |
| |
| | | Article 10 Appropriation of payments |
| |
| | | The Bank shall apply all net payments it receives under this agreement (i.e. after deduction
of all costs and expenses) in reduction or settlement of the Borrower’s indebtedness as
follows: firstly costs and expenses incurred, secondly fees and commissions, next
compensation and default interest, then interest and finally principal. |
| |
| | | Article 11 Evidence |
| |
| | | The Bank’s records shall be conclusive evidence of the Borrower’s indebtedness to the Bank,
unless the Borrower shall be able to furnish proof to the contrary. In the case of
disagreement on any amount due and payable by the Borrower according to the records of the
Bank, the Borrower shall not be entitled to refuse or postpone payment of the whole or any
part of such amount but this shall not affect the Bank’s obligation to refund any amount it
should appear to have received in excess. |
| |
| | | Article 12 Amendments and additions |
| |
| | | In the case of any amendments or additions to the short-term loan facility referred to under
‘Whereas’ at the beginning of this agreement, or replacement by a similar short-term loan
facility, the provisions contained in this agreement shall continue to apply, without any
rider to this agreement or a separate agreement being required. |
| |
| | | Article 13 General Banking Conditions |
| |
| | | Except where this agreement expressly provides otherwise, the legal relationship between the
Borrower and the Bank shall be subject to the Bank’s General Banking Conditions. The Borrower
declares that he has received a copy of these General Banking Conditions and to be aware of
the content thereof. |
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Signature:
| | | |
| Majuro, 11 January 2008
| | Rotterdam, 2008 |
|
| | |
|
| | HOLLANDSCHE BANK-UNIE N.V. |
/s/ Ion X. Xxxxxxxxxx
Adventure Two S.A.
/s/ Ion X. Xxxxxxxxxx
Adventure Three S.A.
/s/ Ion X. Xxxxxxxxxx
Adventure Seven S.A.
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