USD 202,000,000 reducing revolving CREDIT facilitY Agreement
|
USD
202,000,000
|
|
|
|
The
Companies listed in Schedule 1
as
Borrowers
|
|
|
|
named
herein
as
Original Lenders
|
|
with
|
|
Nordea
Bank Finland Plc.
as
Swap Bank
|
|
and
|
|
Nordea
Bank Norge ASA
as
Agent
|
|
and
|
|
Nordea
Bank Norge ASA
as
Mandated Lead Arranger
|
|
Dated
29 August 2006
|
2THE
FACILITY
3PURPOSE
4CONDITIONS
PRECEDENT
5DRAWDOWN
6SCHEDULED
REDUCTIONS AND REPAYMENT
7PREPAYMENT
AND CANCELLATION
8INTEREST
9INTEREST
PERIODS
10CHANGES
TO THE CALCULATION OF INTEREST
11FEES
12TAX
GROSS-UP AND INDEMNITIES
13INCREASED
COSTS
14OTHER
INDEMNITIES
15MITIGATION
BY THE LENDERS
16COSTS
AND
EXPENSES
17SECURITY
18REPRESENTATIONS
AND WARRANTIES
19INFORMATION
UNDERTAKINGS
20FINANCIAL
COVENANTS
21GENERAL
UNDERTAKINGS
22VESSELS’
COVENANTS
23EVENTS
OF
DEFAULT
24CHANGES
TO THE LENDERS
25CHANGES
TO THE BORROWERS
26ROLE
OF
THE AGENT AND THE ARRANGER
27SHARING
AMONG THE FINANCE PARTIES
28PAYMENT
MECHANICS
29SET-OFF
30NOTICES
31CALCULATIONS
32MISCELLANEOUS
33GOVERNING
LAW AND ENFORCEMENT
SCHEDULES
1 Original
Parties, Commitments and Allocated Loan Amounts
2 Conditions
Precedent
3 Form
of
Drawdown Notice
4 Form
of
Compliance Certificate
5 Form
of
Transfer Certificate
6 Form
of
Accession Letter
7 Scheduled
reductions
8 Form
of
Assignment Agreement
9 Mandatory
Cost Formulae
10 Form
of
Guarantee
THIS
REDUCING REVOLVING CREDIT FACILITY AGREEMENT is
dated
29 August 2006 and made between:
|
(1)
|
THE
COMPANIES listed
in Part I of Schedule
1
as
original borrowers (together the “Original
Borrowers”)
|
(2) The
banks and financial institutions listed in Part II of Schedule
1,
as
original lenders (together, the “Lenders”);
(3) Nordea
Bank Finland Plc.
of TO1,
FIN-00020 Nordea, Helsinki, Finland, as swap bank, (the “Swap
Bank”);
(4) Nordea
Bank Norge ASA
of
Xxxxxxxxxxxxxxx 00, X-0000 Xxxx, Xxxxxx, organisation number 911 044 110, as
bookrunner (the “Bookrunner”);
(5) Nordea
Bank Norge ASA
of
Xxxxxxxxxxxxxxx 00, X-0000 Xxxx, Xxxxxx, organisation number 911 044 110, as
facility agent (the “Agent”);
(6) Nordea
Bank Norge ASA
of
Xxxxxxxxxxxxxxx 00, X-0000 Xxxx, Xxxxxx, organisation number 911 044 110, as
mandated lead arranger (the “Arranger”)
and
underwriter (the “Underwriter”);
and
(7) DVB
Bank America NV
of
Zeelandia Office Park, Kaya W.F.G. Mensnig 14, X.X. Xxx 0000, Xxxxxxx,
Xxxxxxxxxxx Antilles, The
Governor and Company of the Bank of Scotland
of Xxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx, XX0 0XX and acting from their office at Xxxxxxxx
Xxxxx, 0 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, XX00 0XX and HSH
Nordbank AG
of
Xxxxxxx Xxxxxxxxx Xxxxx 00, 00000 Xxxxxxx, Xxxxxxx, as co-arrangers (the
“Co-Arrangers”).
IT
IS AGREED
as
follows:
| 1 |
DEFINITIONS
AND INTERPRETATION
|
| 1.1 |
Definitions
|
In
this
Agreement, unless the context otherwise requires:
“Accession
Letter”
means
a
document substantially in the form set out in Schedule
6
(Form of
Accession Letter).
“Account
Charge”
means
the account charge collateral to this Agreement for the first priority charge
over the Earnings Accounts to be made between the Borrowers and the Agent (on
behalf of the Finance Parties and the Swap Bank) as security for the Borrowers’
obligations under the Finance Documents and any Swap Agreement, in form and
acceptance acceptable to the Agent.
“Additional
Borrower”
means
a
company which becomes an Additional Borrower in accordance with Clause 25
(Changes to the Borrowers).
“Agreement”
means
this reducing revolving credit facility agreement, as it may be amended,
supplemented and varied from time to time, including its Schedules and any
Transfer Certificate.
“Allocated
Loan Amount”
means:
| a) |
in
respect of each Existing Vessel, the amount set out in Part III of
Schedule
1
(Original Parties, Commitments and Allocated Loan
Amounts);
|
| b) |
in
respect of MV “Sibohelle” (tbr “Sakonnet”), the lower of (i) USD
27,000,000 and (ii) seventy-five per cent (75.00%) of the Market
Value of
such vessel at such time, and always adjusted for the scheduled reductions
in Schedule
7
(Scheduled reductions) up until the Drawdown Date for the Loan related
to
MV “Sibohelle” (tbr “Sakonnet”);
and
|
| c) |
in
respect of any New Vessel, as determined by the Agent (on behalf
the
Lenders).
|
“Approved
Brokers”
means
(i) Compass Maritime Services, LLC, (ii) Xxxxx Xxxxxxxx Salles S.A.S, (iii)
Braemar Seascope Valuations Ltd., (iv) Xxxxxxxxx & Stemoco AS and (v)
Associated Shipbroking A.S.M. being reputable and independent ship brokers
appointed by the Lenders.
“Assignment
Agreement”
means
the assignment agreement collateral to this Agreement for the first priority
assignment of the Earnings, the Insurances, certain bank accounts with the
Agent
and the Charter Guarantees to be made between the Borrowers and the Agent (on
behalf of the Finance Parties and the Swap Bank) as security for the Borrowers’
obligations under the Finance Documents and any Swap Agreement, substantially
in
the form set out in Schedule
8
(Form of
Assignment Agreement) or such other form as is acceptable to the
Agent.
“Availability
Period”
means
the period from and including the date of this Agreement to and including the
day falling one (1) month prior to the Final Maturity Date, however so that
the
first utilisation of the Allocated Loan Amounts in respect of the New Vessels
must be made by 30 June 2007 in order for such amounts not to be automatically
cancelled at such date in accordance with Clause 5.3
(Availability).
“Available
Commitment”
means
a
Lender’s Commitment less:
| a) |
the
amount of its participation in any outstanding Loans;
and
|
| b) |
in
relation to any proposed Drawdown, the amount of its participation
in any
other Loans that are due to be made on or before the proposed Drawdown
Date,
|
other
than, in relation to any proposed Drawdown, that Lender’s participation in any
Loans that are due to be repaid or repaid on or before the proposed Drawdown
Date.
“BHOBO
One”
means
BHOBO One Ltd. of Trust Company Complex, Ajeltake Island, Majuro, Xxxxxxxx
Xxxxxxx, XX00000.
“BHOBO
Two”
means
BHOBO Two Ltd. of Trust Company Complex, Ajeltake Island, Majuro, Xxxxxxxx
Xxxxxxx, XX00000.
“BHOBO
Three”
means
BHOBO Three Ltd. of Trust Company Complex, Ajeltake Island, Majuro, Xxxxxxxx
Xxxxxxx, XX00000.
“Borrower”
means
an Original Borrower or an Additional Borrower.
“Break
Costs”
means
the amount (if any) by which:
| a) |
the
interest which a Lender should have received for the period from
the date
of receipt of all or part of its participation in a Loan or Unpaid
Sum to
the last day of the current Interest Period in respect of a Loan
or Unpaid
Sum, had the principal amount or Unpaid Sum been paid on the last
day of
that Interest Period; exceeds
|
| b) |
the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit
with
a leading bank in the relevant interbank market for a period starting
on
the Business Day following receipt or recovery and ending on the
last day
of the current Interest Period.
|
“Business
Day”
means
a
day (other than a Saturday or Sunday) on which banks are open for business
in
Oslo, New York and London (or any other relevant place of payment under Clause
28 (Payment mechanics).
“Cash
and Cash Equivalents”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“Charter
Guarantee”
means
each of the guarantees granted by the relevant Charter Guarantor in favour
of
the relevant Borrower as security for the due performance of all of the relevant
Charterers’ obligations under the relevant Charterparty, in form and substance
satisfactory to the Agent (on behalf of the Majority Lenders).
“Charter
Guarantor”
means:
| a) |
in
respect of (i) MV “Rip Hudner”, (ii) MV “Xxxxxx Xxxxxxxxx” and (iii) MV
“Searose G”, Sempra Energy of 000 Xxx Xxxxxx, Xxx Xxxxx,
X.X.X.;
|
| b) |
in
respect of MV “Xxxxx X. Xxxxx”, Clearwater Advisors Corporation of
Tortola, BVI;
|
| c) |
in
respect of MT “Sagamore”, ENOC Supply & Trading LLC of Dubai, however
only to the extent that the ENOC Supply & Trading LLC has nominated
another company as charterers under the Charterparty for MT “Sagamore”;
and
|
| d) |
any
other charter guarantor for any of the New Vessels (if any), as approved
by the Agent (on behalf of the Lenders) from time to
time.
|
“Charterers” means:
| a) |
in
respect of each of (i) MV “Rip Hudner”, MV “Xxxxxx Xxxxxxxxx” and MV
“Searose G”, TTMI Sarl. of Geneva,
Switzerland;
|
| b) |
in
respect of MV “Xxxxx X. Xxxxx”, Clearlake Shipping Ltd. of Tortola, BVI;
|
| c) |
in
respect of MT “Sagamore”, ENOC Supply & Trading LLC of Dubai;
and
|
| d) |
any
other charterer of any of the New Vessels as approved by the Agent
(on
behalf of the Lenders) from time to
time.
|
“Charterparty”
means:
| a) |
in
respect of each of MV “Rip Hudner” and MV “Xxxxxx Xxxxxxxxx”, the time
charterparties dated 4 February 2005, respectively, made between
BHOBO Two
and BHOBO One (as owners), respectively, and TTMI Sarl. (as charterers),
for a period of five (5) years at a net daily charter rate of not
less
than USD 26,600 during year 1, USD 24,600 during year 2, USD 23,600
during
year 3, USD 22,600 during year 4 and USD 20,600 during year
5;
|
| b) |
in
respect of MV “Searose G”, the time charterparty dated 4 February 2005
made between BHOBO Three (as owner) and TTMI Sarl. (as charterers),
for a
charter period of five (5) years at a net daily charter rate of not
less
than USD 26,000 during year 1, USD 24,000 during year 2, USD 23,000
during
year 3, USD 22,000 during year 4 and USD 20,000 during year 5 and
with a
35.00% profit share in years 2 - 5;
|
| c) |
in
respect of MV “Xxxxx X. Xxxxx”, the time charterparty made or to be made
between RMJ OBO Shipping Ltd. (as owner) and Clearlake Shipping Ltd.
(as
charterers), for a period of three (3) years commencing on the relevant
Drawdown Date, at a daily charter rate of not less than USD 23,500
(less
3.75% commission);
|
| d) |
in
respect of MV “Sagamore”, the time charterparty made or to be made between
Sagamore Shipping Ltd. (as owner) and ENOC Supply & Trading LLC (as
charterers), for a charter period of three (3) years commencing at
the
relevant Drawdown Date, at a daily charter rate of not less than
USD
23,500 (less 3.75% commission); and
|
| e) |
in
respect of any of the New Vessels, (i) the time charterparty between
the
relevant Borrower and TTMI Sarl (in respect of MV “Sibohelle” (tbr
“Sakonnet”) or (ii) any other time charterparty between the relevant
Borrower and a Charterer,
|
in
any
event, in form and substance as approved by the Agent (on behalf of the Finance
Parties).
“Charterparty
Assignment”
means
each of the deeds of assignment collateral to this Agreement for the first
priority assignments of the Charterparties to be made between the Borrowers
and
the Agent (on behalf of the Finance Parties and the Swap Bank) as security
for
the Borrowers’ obligations under the Finance Documents and any Swap
Agreement(s), in form and substance as approved by the Agent (on behalf of
the
Finance Parties and the Swap Bank).
“Commercial
Management Agreement”
means
the agreement made between the Commercial Manager and the Guarantor (and all
of
its Subsidiaries) for the management of the Guarantor (and its Subsidiaries,
hereunder (but not limited to) the Borrowers and the Vessels.
“Commercial
Manager”
means
B+H Management Ltd. of Par-la-Ville Place, 14 Par-la-Ville Road, Xxxxxxxx XX
JX,
Bermuda.
“Commitment”
means:
| a) |
in
relation to a Lender, the amount set opposite its name under the
heading
“Commitments” in Part II of Schedule
1
(Original Parties, Commitments and Allocated Loan Amounts) and the
amount
of any other Commitment transferred to it pursuant to Clause 24.1
(Assignments and transfers by the Lenders); and
|
| b) |
in
relation to any New Lender, the amount of any Commitment transferred
to it
pursuant to Clause 24.1 (Assignments and transfers by the
Lenders),
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
“Compliance
Certificate”
means
a
certificate substantially in the form as set out in Schedule
4
(Form of
Compliance Certificate).
“Deeds
of Covenants”
means
(if relevant) each of the first priority deeds of covenants collateral to the
Mortgages, to be entered into between the respective Borrower and the Agent
(on
behalf of the Finance Parties and the Swap Bank), in form and substance
satisfactory to the Agent (on behalf of the Finance Parties and the Swap
Bank).
“Default”
means
an Event of Default or any event or circumstance specified in Clause 23 (Events
of Default) which would (with the expiry of a grace period, the giving of
notice, the making of any determination under the Finance Documents or any
combination of any of the foregoing) be an Event of Default.
“DOC”
means
in relation to the Technical Manager a valid document of compliance issued
to
the Technical Manager pursuant to paragraph 13.2 of the ISM Code.
“Drawdown”
means
a
utilisation under the Facility.
“Drawdown
Date”
means
the Business Day on which the Borrowers have requested a Drawdown pursuant
to
this Agreement or, as the context requires, the date on which the relevant
Loan
is actually made.
“Drawdown
Notice”
means
the notice substantially in the form set out in Schedule
3
(Form of
Drawdown Notice).
“Earnings”
means
all moneys whatsoever which are now, or later become, payable (actually or
contingently) to any of the Borrowers and which arise out of the use of or
operation of any of the Vessels, including (but not limited to):
| a) |
all
freight, hire and passage moneys payable to any of the Borrowers,
including (without limitation) payments of any nature under any of
the
Charterparties or any other charter or agreement for the employment,
use,
possession, management and/or operation of any of the
Vessels;
|
| b) |
any
claim under any guarantees related to freight and hire payable to
any of
the Borrowers as a consequence of the operation of any of the
Vessels;
|
| c) |
compensation
payable to any of the Borrowers in the event of any requisition of
any of
the Vessels or for the use of any of the Vessels by any government
authority or other competent
authority;
|
| d) |
remuneration
for salvage, towage and other services performed by any of the Vessels
payable to any of the Borrowers;
|
| e) |
demurrage
and retention money receivable by any of the Borrowers in relation
to any
of the Vessels;
|
| f) |
all
moneys which are at any time payable under the Insurances in respect
of
loss of earnings;
|
| g) |
if
and whenever any of the Vessels is employed on terms whereby any
moneys
falling within litra a) to f) above are pooled or shared with any
other
person, that proportion of the net receipts of the relevant pooling
or
sharing arrangement which is attributable to such Vessel; and
|
| h) |
any
other money whatsoever due or to become due to any of the Borrowers
from
third parties in relation to any of the Vessels, or
otherwise.
|
“Earnings
Accounts”
means:
| a) |
account
no. 00000000 in the name of OBO Holdings Ltd. with Nordea Bank Finland
plc, London Branch;
|
| b) |
account
no. 00000000 in the name of BHOBO One with the Nordea Bank Finland
Plc.
London Branch;
|
| c) |
account
no. 00000000 in the name of BHOBO Two with the Nordea Bank Finland
Plc.
London Branch;
|
| d) |
account
no. 00000000 in the name of BHOBO Three with Nordea Bank Finland
Plc.
London Branch;
|
| e) |
account
no. 00000000 in the name of RMJ OBO Shipping Ltd. with Nordea Bank
Finland
Plc. London Branch; and
|
| f) |
account
no. 00000000 in the name of Sagamore Shipping Ltd. with Nordea Bank
Finland Plc. London Branch,
|
or
any
such other accounts of any of the Borrowers with the Agent and/or Nordea Bank
Finland Plc. London Branch to which all the Earnings shall be paid, pledged
in
favour of the Agent (on behalf of the Finance Parties and the Swap Bank) under
the Assignment Agreement.
“EBITDA”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“Environmental
Approval”
means
any permit, licence, consent, approval and other authorisations and the filing
of any notification, report or assessment required under any Environmental
Law
for the operation of the Vessels.
“Environmental
Claim”
means
any claim, proceeding or investigation by any party in respect of any
Environmental Law or Environmental Approval.
“Environmental
Law”
means
any applicable law, regulation, convention or treaty in any jurisdiction in
which any of the Borrowers and/or the Charterers conduct business which relates
to the pollution or protection of the environment or to the carriage of material
which is capable of polluting the environment.
“Event
of Default”
means
any event or circumstance specified as such in Clause 23 (Events of
Default).
“Existing
Credit Facility”
means
the credit facility granted to the Original Borrowers under the USD 138,100,000
revolving reducing term loan facility agreement dated 18 October
2005.
“Existing
Vessels”
means:
| a) |
M/V
“Xxxxxx Xxxxxxxxx”, a 83,000 dwt OBO tanker built in 1993, with IMO number
9050084, registered in the name of BHOBO One in the Bahamas Ship
Register;
|
| b) |
M/V
“Rip Hudner”, a 83,000 dwt OBO tanker built in 1994, with IMO number
9077111, registered in the name of BHOBO Two in the Bahamas Ship
Register;
|
| c) |
M/V
“Searose G”, a 83,000 dwt OBO tanker built in 1994, with IMO number
9050096, registered in the name of BHOBO Three in the Bahamas Ship
Register;
|
| d) |
M/V
“Xxxxx X. Xxxxx”, a 75,000 dwt OBO tanker built in 1992, with IMO number
9009396 to
be registered in the name of RMJ OBO Shipping Ltd. in the Bahamas
Ship
Registry; and
|
| e) |
MT
“Sagamore”, a 68,000 dwt product tanker built in 1991, with IMO number
9002192 to be registered in the name of Sagamore Shipping Ltd. in
the
Bahamas Ship Registry.
|
“FA
Act”
means
the Norwegian Financial Agreements Act of 25 June 1999 no. 46 (as
amended).
“Facility”
means
the reducing revolving credit facility made available under this Agreement
as
described in Clause 2.1 (The Facility)
“Fee
Letter”
means
any letter or letters dated on or about the date of this Agreement between
the
Arranger and the Borrowers (or the Agent and the Borrowers) setting out any
fees
referred to in Clause 11 (Fees).
“Final
Maturity Date”
means
31 December 2011.
“Finance
Documents”
means
this Agreement, the Security Documents, any Accession Letter, any Fee Letter
and
any other document (whether creating a Security Interest or not) which is
executed at any time by any of the Borrowers or any other person as security
for, or to establish any form of subordination to the Finance Parties under
this
Agreement or any of the other documents referred to herein or
therein.
“Finance
Party”
means
the Agent, the Arranger, the Bookrunner, the Co-Arrangers and the
Lenders.
“Financial
Indebtedness”
means
any obligation (whether incurred as principal or as surety) for the payment
or
repayment of money, whether present or future, actual or
contingent.
“Fixed
Charges”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“GAAP”
means
the generally accepted accounting principles in Norway, Bermuda and the United
States (as the case may be).
“Group”
means
the Guarantor and its Subsidiaries from time to time.
“Guarantee”
means
an on-demand guarantee (selvskyldnerkausjon)
to be
provided by the Guarantor in favour of the Agent (on behalf of the Finance
Parties and the Swap Bank) as security for the Borrowers’ obligations under the
Finance Documents and any Swap Agreement(s), substantially in the form set
out
in Schedule
10
(Form of
Guarantee).
“Guarantor”
means
B+H Ocean Carriers Ltd. of 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
“Insurances”
means,
in relation to the Vessels, all policies and contracts of insurance (which
expression includes all entries of the Vessels in a protection and indemnity
or
war risk association) which are from time to time during the Security Period
in
place or taken out or entered into by or for the benefit of any of the Borrowers
and/or the Charterers (whether in the sole name of the Borrowers or in the
joint
names of the Borrowers and any other person) in respect of the Vessels or
otherwise in connection with the Vessels and all benefits thereunder (including
claims of whatsoever nature and return of premiums).
“Interest
Payment Date”
means
the last Business Day of each Interest Period.
“Interest
Period”
means,
in relation to a Loan, each of the successive periods determined in accordance
with Clause 9.1 (Interest Periods), and, in relation to an Unpaid Sum, each
period determined in accordance with Clause 8.3 (Default interest).
“ISM
Code”
means
the International Safety Management Code for the Safe Operation of Ships and
for
Pollution Prevent.
“ISPS
Code”
means
the International Ship and Port Facility Security (ISPS) Code as adopted by
the
International Maritime Organization’s (IMO) Diplomatic Conference of December
2002.
“Lenders”
means
the banks and financial institutions listed in Part II of Schedule
1
(Original Parties, Commitments and Allocated Loan Amounts) and any New Lender,
which in each case has not ceased to be a Party in accordance with the terms
of
this Agreement.
“LIBOR”
means
in relation to any Loan:
| a) |
the
rate per annum equal to the offered quotation for deposits in USD
for the
relevant Interest Period ascertained by the Agent to be the rate
as
displayed on the Reuters' screen, page LIBOR01, at or about 11:00
hours
(London time) on the applicable Quotation Day;
or
|
| b) |
if
no such rate is available, the arithmetic means of the rate per annum
at
which the Lenders are able to acquire USD in the amount and for the
relevant Interest Period of the Loan in the London interbank market
at or
about 11:00 hours (London time) on the applicable Quotation Day,
as (in
the absence of manifest error) conclusively certified by the Agent
to the
Borrowers.
|
“Loan”
means
a
loan made or to be made under the Facility or the principal amount outstanding
for the time being of that loan.
“Majority
Lenders”
means:
| a) |
if
there are no Loans outstanding, a Lender or Lenders whose Commitments
aggregate more than 66.67% of the Total Commitments (or, if the Total
Commitments have been reduced to zero, aggregated more than 66.67%
of the
Total Commitments immediately prior to the reduction);
or
|
| b) |
at
any other time, a Lender or Lenders whose participations in the Loan
then
outstanding aggregate more than 66.67% of the Loan then outstanding.
|
"Mandatory
Cost"
means
the percentage rate per annum calculated by the Agent in accordance with
Schedule
9
(Mandatory
Cost formulae).
“Managers”
means
the Commercial Manager and the Technical Manager.
“Margin”
means
one per cent (1.00%) per annum.
“Market
Value”
means
the fair market value of each of the Vessels in USD, being the average of
valuations of the respective Vessel obtained from two (2) Approved Brokers,
with
or without physical inspection of the Vessels (as the Agent may require) 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 seller, on an “as is, where is”
basis, free of any existing charter or other contract of employment and/or
pool
arrangement.
“Material
Adverse Effect”
means
a
material adverse effect on:
| a) |
the
business, operation, assets or condition (financial or otherwise)
of any
of the Borrowers and/or the Guarantor and/or the Charterers and/or
the
Charter Guarantor (as the case may be);
|
| b) |
the
ability of any of the Borrowers and/or the Guarantor (as the case
may be)
to perform any of their obligations under the Finance Documents;
or
|
| c) |
the
rights or remedies of the Lenders under the Finance
Documents.
|
“Measurement
Period”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“MOAs”
means
each of the Memoranda of Agreements (and any addenda thereto) being made between
a Seller and a Borrower for the purchase of a New Vessel.
“Mortgages”
means
each of the first priority mortgages to be executed and recorded by the relevant
Borrowers against the Vessels in the Bahamas Ship Registry (or such other ship
registry as acceptable to the Lenders) in favour of the Agent (on behalf of
the
Finance Parties and the Swap Bank), in form and substance satisfactory to the
Agent (on behalf of the Finance Parties and the Swap Bank).
“Net
Interest”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“New
Lender”
has
the
meaning set out in Clause 24 (Changes to the Lenders).
“New
Vessels”
means:
| a) |
MV
“Sibohelle” (tbr “Sakonnet”), a 75,000 dwt OBO carrier built in 1993 at
B&W Shipyard in Denmark, however so that the principal amount of the
Loan incurred to partly finance MV “Sibohelle” (tbr “Sakonnet”) shall not
exceed seventy-five per cent (75.00%) of the Market Value of such
vessel
on the date of consummation of such vessel acquisition;
and
|
| b) |
two
(2) additional vessels (i) being a type of vessel complementary to
the
current business plan of the Guarantor and acceptable to the Majority
Lenders, (ii) maintaining a flag and class acceptable to the Majority
Lenders, (iii) for which the purchase price shall not exceed the
Market
Value of the respective vessel, (iv) of maximum fifteen (15) years
of age
and (v) for which the principal amount of the Loan incurred to partly
finance each such new vessel shall not exceed seventy-five per cent
(75.00%) of the Market Value of such new vessel on the date of
consummation of such vessel
acquisition.
|
“Original
Borrowers”
means
OBO Holdings Ltd, BHOBO One, BHOBO Two, BHOBO Three, RMJ OBO Shipping Ltd.
and
Sagamore Shipping Ltd.
“Original
Financial Statements”
means
the unaudited consolidated financial statements of the Guarantor and the
Original Borrowers for the year ended 31 December 2005 and the opening balance
sheets of the New Borrowers.
“Party”
means
a
party to this Agreement (including its successors and permitted transferees).
“Quarter
Date”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“Quotation
Day”
means
the day occurring two (2) Business Days prior to the commencement of an Interest
Period.
“Secured
Party”
means
a
Finance Party and the Swap Bank.
“Security
Documents”
means
all or any security documents as may be entered into from time to time pursuant
to Clause 17 (Security).
“Security
Interest”
means
any mortgage, charge (whether fixed or floating), encumbrance, pledge, lien,
assignment by way of security, finance lease, sale and repurchase or sale and
leaseback arrangement, sale of receivables on a recourse basis or other security
interest or any other agreement or arrangement having the effect of conferring
security.
“Security
Period”
means
the period commencing on the first Drawdown Date hereunder and ending the date
on which the Agent notifies the Borrowers, the other Finance Parties and the
Swap Bank that:
| a) |
all
amounts which have become due for payment by any of the Borrowers
or any
other party under the Finance Documents and any Swap Agreement(s)
have
been paid;
|
| b) |
no
amount is owing or has accrued (without yet having become due for
payment)
under any of the Finance Documents or any Swap
Agreement(s);
|
| c) |
none
of the Borrowers or any other party has any future or contingent
liability
under any provision of this Agreement, the other Finance Documents
or any
Swap Agreement(s); and
|
| d) |
none
of the Agent, the Majority Lenders and the Swap Bank do consider
that
there is a significant risk that any payment or transaction under
a
Finance Document or any Swap Agreement(s) would be set aside, or
would
have to be reversed or adjusted, in any present or possible future
proceeding relating to a Finance Document or any Swap Agreement or
any
asset covered (or previously covered) by a Security Interest created
by a
Finance Document or any Swap
Agreement.
|
“Seller”
means
a
seller in respect of a New Vessel as set out in the respective MoA.
“SMC”
means
a
valid safety management certificate issued for each the Vessels pursuant to
paragraph 13.7 of the ISM Code.
“SMS”
means
a
safety management system for the Vessels developed and implemented in accordance
with the ISM Code and including the functional requirements duties and
obligations that follow from the ISM Code.
“Subsidiaries”
means
any business entity of which more than fifty per cent (50.00%) of the
outstanding voting stock or other equity interest is owned directly of
indirectly by such person and/or one or more other Subsidiaries of such
person.
“Swap
Agreement”
means
any interest rate swap agreement or agreements, hereunder any ISDA Master
Agreement and schedules thereto, to be made between the Guarantor and/or the
Borrowers and the Swap Bank in relation to the Facility.
“Tax
on Overall Net Income”
means
a
Tax imposed on a Finance Party by the jurisdiction under the laws of which
it is
incorporated, or in which it is located or treated as resident for tax purposes,
on:
| a) |
the
net income, profits or gains of that Finance Party world wide; or
|
| b) |
such
of the net income, profits or gains of that Finance Party as are
considered to arise in or relate to or are taxable in that
jurisdiction.
|
“Taxes”
means
all present and future taxes, levies, imposts, duties, charges, fees, deductions
and withholdings, and any restrictions and or conditions resulting in a charge
together with interest thereon and penalties in respect thereof and
“tax”
and
“taxation”
shall
be construed accordingly.
“Technical
Management Agreements”
means
the agreement made or to be made between the relevant Borrower and the Technical
Manager for the technical management of the Vessels.
“Technical
Manager”
means
the Commercial Manager (in its capacity as technical manager).
“Total
Commitments”
means
the aggregate of the Commitments, being USD 202,000,000 at the date of this
Agreement.
“Total
Debt”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“Total
Loss”
means,
in relation to any of the Vessels:
| a) |
the
actual, constructive, compromised, agreed, arranged or other total
loss of
such Vessel;
|
| b) |
any
expropriation, confiscation, requisition or acquisition of such Vessel,
whether for full consideration, a consideration less than its proper
value, a nominal consideration or without any consideration, which
is
effected by any government or official authority or by any person
or
persons claiming to be or to represent a governmental or official
authority (excluding a requisition for hire for a fixed period not
exceeding one (1) year without any right to extension) unless it
is within
one (1) month from the Total Loss Date redelivered to the full control
of
the relevant Borrower; and
|
| c) |
any
arrest, capture, seizure or detention of such Vessel (including any
hijacking or theft) unless it is within one (1) month from the Total
Loss
Date redelivered to the full control of the relevant
Borrower.
|
“Total
Loss Date”
means:
| a) |
in
the case of an actual total loss of any of the Vessels, the date
on which
it occurred or, if that is unknown, the date when the relevant Vessel
was
last heard of;
|
| b) |
in
the case of a constructive, compromised, agreed or arranged total
loss of
any of the Vessels, the earlier of: (i) the date on which a notice
of
abandonment is given to the insurers (provided a claim for total
loss is
admitted by such insurers) or, if such insurers do not forthwith
admit
such a claim, at the date at which either a total loss is subsequently
admitted by the insurers or a total loss is subsequently adjudged
by a
competent court of law or arbitration panel to have occurred or,
if
earlier, the date falling six (6) months after notice of abandonment
of
the relevant Vessel was given to the insurers; and (ii) the date
of
compromise, arrangement or agreement made by or on behalf of the
relevant
Borrower with the relevant Vessel’s insurers in which the insurers agree
to treat such Vessel as a total loss;
or
|
| c) |
in
the case of any other type of total loss, on the date (or the most
likely
date) on which it appears to the Agent that the event constituting
the
total loss occurred.
|
“Transaction
Documents”
means
the Finance Documents, the MOAs, the Charterparties, the Charter Guarantees,
the
Technical Management Agreements and the Swap Agreement(s), together with the
other documents contemplated herein or therein.
“Transfer
Certificate”
means
a
certificate substantially in the form as set out in Schedule
5
(Form of
Transfer Certificate) or any other form agreed between the Agent and the
Borrowers.
“Transfer
Date”
means,
in respect of a Transfer (as defined in Clause 24.1 (Assignments and transfers
by Lenders), the proposed Transfer Date as set out in the Transfer Certificate
relating to the Transfer.
“Unpaid
Sum”
means
any sum due and payable but unpaid by any of the Borrowers and/or the Guarantor
(as the case may be) under the Finance Documents.
“USD”
means
United States Dollars, being the lawful currency of the United States of
America.
“Value Adjusted
Equity”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“Value
Adjusted Equity Ratio”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“Value
Adjusted Total Assets”
has
the
meaning given to that term in Clause 20.1 (Financial definitions).
“VAT”
means
value added tax and any other tax of similar nature.
“Vessels”
means
the Existing Vessels and the New Vessels.
| 1.2 |
Construction
|
In
this
Agreement, unless the context otherwise requires:
| a) |
Clause
and Schedule headings are for ease of reference
only;
|
| b) |
words
denoting the singular number shall include the plural and vice versa.
In
particular, for so long as Nordea Bank Norge ASA is the only Lender,
references to “Lenders” or “Majority Lenders” shall be construed as a
reference to Nordea Bank Norge ASA;
|
| c) |
references
to Clauses and Schedules are references, respectively, to the Clauses
and
Schedules of this Agreement;
|
| d) |
references
to a provision of law is a reference to that provision as it may
be
amended or re-enacted, and to any regulations made by the appropriate
authority pursuant to such law;
|
| e) |
references
to “control”
means the power to appoint a majority of the board of directors or
to
direct the management and policies of an entity, whether through
the
ownership of voting capital, by contract or
otherwise;
|
| f) |
references
to “indebtedness”
includes any obligation (whether incurred as principal or as surety)
for
the payment or repayment of money, whether present or future, actual
or
contingent; and
|
| g) |
references
to a “person”
shall include any individual, firm, partnership, joint venture, company,
corporation, trust, fund, body, corporate, unincorporated body of
persons,
or any state or any agency of a state or association (whether or
not
having separate legal personality).
|
| 2 |
THE
FACILITY
|
| 2.1 |
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrowers
a
reducing revolving credit facility up to an aggregate amount not exceeding
the
Total Commitments.
| 2.2 |
Finance
Parties’ rights and
obligations
|
The
obligations of each Finance Party under the Finance Documents are several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
The
rights of each Finance Party under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance
Documents to a Finance Party from the Borrowers shall be a separate and
independent debt. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.
| 2.3 |
Nature
of rights and obligations of the
Borrowers
|
| a) |
The
obligations of the Borrowers under this Agreement and the other Finance
Documents shall be joint and several. Any Loans shall, once drawn,
be
deemed to have been made by the Lenders to the Borrowers jointly
and
severally, and the obligations of the Borrowers to repay a Loan and
to
perform all other obligations pursuant to this Agreement and the
other
Finance Documents shall be owed to the Lenders jointly and severally.
The
liability of a Borrower for Loans actually made to any of the other
Borrowers shall not exceed USD 202,000,000 plus interest, fees and
expenses under this Agreement and the Finance
Documents.
|
| b) |
Each
of the Borrowers hereby specifically agrees and accepts that the
nature of
their liability hereunder being joint and several shall not be affected
by
any reason or circumstances of legal or factual nature, including,
but not
limited to:
|
| (i) |
any
waiver granted to any of the Borrowers, the Guarantor or any third
party;
|
| (ii) |
any
failure to enforce any rights, remedy or security against any of
the other
Borrowers, the Guarantor or any other third
party;
|
| (iii) |
any
legal limitation, incapacity or other circumstances relating to any
of the
other Borrowers, the Guarantor or any other third
party;
|
| (iv) |
the
liquidation, bankruptcy, insolvency or dissolution or the appointment
of
receiver for any of the other Borrowers, the Guarantor or any other
third
party; or
|
| (v) |
this
Agreement or any of the Finance Documents becoming invalid or
unenforceable against any of the other Borrowers and/or the Guarantor.
|
| c) |
Each
of the Borrowers specifically waives all rights under the provisions
of
the Norwegian FA Act not being mandatory provisions, including (but
not
limited to) the relevant provisions of §§ 62, 63, 65, 66, 67, 70, 71, 72,
73 and 74.
|
| 2.4 |
Borrowers’
agent
|
| a) |
Each
Borrower irrevocably appoints OBO Holdings Ltd. to act on its behalf
as
its agent in relation to the Finance Documents and irrevocably
authorises:
|
| (i) |
OBO
Holdings Ltd. on its behalf to supply all information concerning
itself
contemplated by this Agreement to the Finance Parties and to give
and
receive all notices, consents and instructions (including Drawdown
Notices), to agree, accept and execute on its behalf all documents
in
connection with the Finance Documents (including amendments and variations
and consents under any Finance Document) and to execute any new Finance
Document and to take such other action as may be necessary or desirable
under or in connection with the Finance Documents;
and
|
| (ii) |
each
Finance Party to give any notice, demand or other communication to
that
Borrower pursuant to the Finance Documents to the
Company.
|
| b) |
Each
Borrower confirms that:
|
| (i) |
it
will be bound by any action taken by OBO Holdings Ltd. under or in
connection with the Finance Documents;
and
|
| (ii) |
each
Finance Party may relay on any action purported to be taken by OBO
Holdings Ltd. on behalf of that
Borrower.
|
| c) |
The
respective liabilities of each of the Borrowers and the Guarantor
under
the Finance Documents shall not be in any way affected
by:
|
| (i) |
any
actual or purported irregularity in any act done, or failure to act,
by
OBO Holdings Ltd.;
|
| (ii) |
OBO
Holdings Ltd. acting (or purporting to act) in any respect outside
any
authority conferred upon it by any Borrower;
or
|
| (iii) |
any
actual or purported failure by, or inability of, OBO Holdings Ltd.
to
inform any Borrower of receipt by it of any notification under the
Finance
Documents.
|
| d) |
In
the event of a conflict between any notices or other communications
of OBO
Holdings Ltd. and any Borrower, those of OBO Holdings Ltd. shall
prevail.
|
| 3 |
PURPOSE
|
| 3.1 |
Purpose
|
The
Borrowers shall apply all amounts borrowed by them as follows:
| a) |
to
repay the amount outstanding under the Existing Credit Facility (provided
that such repayment shall not exceed an amount equal to seventy-
five per
cent (75.00%) of the Market Value of the Existing Vessels);
|
| b) |
to
part-finance the purchase price for the New
Vessels;
|
| c) |
for
the Borrowers’ and their Subsidiaries’ general corporate and working
capital purposes; and
|
| d) |
for
the payment of fees and expenses incurred in connection with the
Facility.
|
| 3.2 |
Monitoring
|
Without
prejudice to the obligations of the Borrowers under this Clause 3, no Finance
Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.
| 4 |
CONDITIONS
PRECEDENT
|
| 4.1 |
Initial
conditions precedent
|
The
Borrowers may not deliver a Drawdown Notice unless the Agent has received
originals or certified copies of all of the documents and other evidence listed
in Part I of Schedule
2
(Conditions precedent) in form and substance satisfactory to the Agent, provided
that to the extent that any such documents or evidence can solely as a result
of
the proceeds of the Loan being used to refinance any amount outstanding under
the Existing Credit Facility, not be provided prior to the delivery of a
Drawdown Notice, evidence must be received by the Agent that such documents
and
evidence will be provided on the initial Drawdown Date. The Agent shall notify
the Borrowers and the Lenders promptly upon being so satisfied.
| 4.2 |
Further
conditions precedent
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation)
if on the date of a Drawdown Notice and on the proposed Drawdown
Date:
| a) |
no
Default is continuing or would result from the proposed Loan;
and
|
| b) |
the
representations and warranties contained in Clause 18 (Representations
and
warranties) deemed to be repeated on those dates are true and correct
in
all respects.
|
| 4.3 |
Maximum
number of Loans
|
The
Borrower may not deliver a Drawdown Notice if, as a result of the proposed
Drawdown more than eight (8) Loans would be outstanding (one Loan for each
Vessel).
| 4.4 |
Waiver
of conditions precedent
|
The
conditions specified in this Clause 4 are solely for the benefit of the Lenders
and may be waived on their behalf in whole or in part and with or without
conditions by the Agent (acting on the instructions of the Majority
Lenders).
| 5 |
DRAWDOWN
|
| 5.1 |
Delivery
of a Drawdown Notice
|
The
Borrowers may utilise the Facility by delivering to the Agent a duly completed
Drawdown Notice no later than 10:00 hours (London time) three (3) Business
Days
prior to the proposed Drawdown Date.
| 5.2 |
Completion
of a Drawdown Notice
|
Each
Drawdown Notice is irrevocable and will not be regarded as having been duly
completed unless:
| a) |
it
is substantially in the form set out in Schedule
3
(Form of Drawdown Notice);
|
| b) |
the
proposed Drawdown Date is a Business Day within the Availability
Period;
|
| c) |
the
currency specified is USD and the amount of the proposed Loan (which
together with the other Loans outstanding) is an amount which is
not more
than the Total Commitments and
|
| d) |
the
proposed Interest Period complies with Clause 9 (Interest
Periods).
|
| 5.3 |
Availability
|
Any
amount of the Total Commitments not utilised by the expiry of the Availability
Period shall automatically be cancelled at close of business in Oslo on such
date.
| 5.4 |
Lenders’
participation
|
Upon
receipt of a Drawdown Notice, the Agent shall notify each Lender of the details
of the requested Loan and the amount of each Lender’s participation in such
Loan. If the conditions set out in this Agreement have been met, each Lender
shall no later than 10:00 hours (London time) on the Drawdown Date make
available to the Agent for the account of the relevant Borrower an amount equal
to its participation in the Loan to be advanced pursuant to the Drawdown
Notice.
| 6 |
SCHEDULED
REDUCTIONS AND REPAYMENT
|
| 6.1 |
Roll-over
of Loans
|
The
Borrowers shall repay each Loan in full on the last day of its Interest Period,
however, so that where a Loan (the “New
Loan”),
subject to and in accordance with the other terms of this Agreement, shall
be
made on a day when another Loan (the “Maturing
Loan”)
is due
to be repaid, then:
| a) |
the
Maturing Loan shall be deemed to be repaid on the last day of its
Interest
Period to the extent that the amount of the New Loan is equal to
or
greater than the amount of the Maturing Loan;
and
|
| b) |
to
that extent, the amount of the New Loan shall be deemed to have been
credited to the account of the Borrower, and the Lenders shall only
be
obliged to make available an amount equal to the amount by which
amount
the New Loan exceeds the Maturing
Loan.
|
| 6.2 |
Repayment
of Loans
|
| a) |
The
Allocated Loan Amount for each Existing Vessel and MV “Sibohelle” (tbr
“Sakonnet”) shall be reduced on the dates and in such amounts as set out
in Schedule
7
(Scheduled reductions) (and the Total Commitments shall be reduced
accordingly).
|
| b) |
Each
Allocated Loan Amount relating to any New Vessel (except for MV
“Sibohelle” (tbr “Sakonnet”)) shall be subject to consecutive quarterly
scheduled reductions (to be calculated by the Agent and Schedule
7
(Scheduled reductions) shall be amended accordingly) commencing on
the
first following reduction date of a Loan related to the Existing
Vessels,
each such reduction in equal quarterly amounts in accordance with
a
profile of twenty (20) years (so that each Allocated Loan Amount
and the
Total Commitments, related to a New Vessel except for MV “Sibohelle” (tbr
“Sakonnet”)) shall be reduced quarterly to zero when such New Vessel
except for MV “Sibohelle” (tbr “Sakonnet”) reaches twenty (20) years of
age).
|
| c) |
The
Borrowers shall ensure that sufficient Loans are repaid on an Interest
Payment Date to the extent necessary so that the aggregate amount
of the
outstanding Loans (after that repayment) is equal to or less than
the
reduced amount of Total
Commitments.
|
| d) |
Any
reduction of the Total Commitments shall reduce rateably each Lender’s
Commitment.
|
| 6.3 |
Final
repayment
|
On
the
Final Maturity Date the Borrowers shall repay all Loans then outstanding under
this Agreement in full, together with all other sums due and outstanding under
the Finance Documents at such date (if any).
| 7 |
PREPAYMENT
AND CANCELLATION
|
| 7.1 |
Mandatory
prepayment
- Total Loss or sale
|
| a) |
If
any of the Vessels is sold or becomes a Total Loss or early termination
fees are paid under any of the Charterparties, the Borrowers shall
be
obliged to prepay the Facility by an amount equal to the sum of
outstanding remaining scheduled reductions related to such Vessel
as per
Schedule
7
(Schedule reductions) and the Total Commitments shall be reduced
by an
amount equal to the Allocated Loan Amount for such
Vessel:
|
| (i) |
in
case of a sale, on or before the date on which the sale is completed
by
delivery of the relevant Vessel to the buyer;
or
|
| (ii) |
in
the case of a Total Loss, on the earlier of the date falling ninety
(90)
days after the Total Loss Date and the receipt by the Agent (on behalf
of
the Lenders) of the proceeds of Insurance relating to such Total
Loss (or
in the event of a requisition for title of the relevant Vessel,
immediately upon receipt of the requisition proceeds relating to
such
requisition of title).
|
| b) |
In
addition to the prepayment pursuant to sub-paragraph a) above, if
the
Market Value of the remaining Vessels is below one hundred and twenty
per
cent (120.00%) of the outstanding Loans following the prepayment
under
sub-paragraph a) above, the Borrowers shall within fifteen (15) Business
Days, either:
|
| (i) |
prepay
the Loans by such amount, upon which the Total Commitments shall
be
reduced by such amount; or
|
| (ii) |
provide
the Lenders with such additional security, in form and substance
satisfactory to the Agent (on behalf of the
Lenders),
|
required
to restore the aforesaid ratio.
| 7.2 |
Mandatory
prepayment - Market Value
|
If
the
Market Value falls below one hundred and twenty per cent (120.00%) of the Loans
at any time from the earlier of (i) the expiry of the Charterparty in respect
of
MT “Xxxxx X. Xxxxx” and (ii) 30 September 2008, the Borrowers shall within
fifteen (15) Business Days, either:
| a) |
prepay
the Loans by such amount, upon which the Total Commitments shall
be
reduced by such amount; or
|
| b) |
provide
the Lenders with such additional security, in form and substance
satisfactory to the Agent (on behalf of the
Lenders),
|
required
to restore the aforesaid ratio.
| 7.3 |
Mandatory
prepayment - illegality
|
If
it
becomes unlawful in any applicable jurisdiction for a Lender to perform any
of
its obligations as contemplated by this Agreement or to fund or maintain its
participation in a Loan:
| a) |
that
Lender shall promptly notify the Agent upon becoming aware of that
event;
|
| b) |
the
Agent shall promptly notify the Borrowers (specifying the obligations
the
performance of which is thereby rendered unlawful and the law giving
rise
to the same) upon receipt of notification in accordance with litra
a)
above;
|
| c) |
upon
the Agent notifying the Borrowers, the Commitment of that Lender
will be
immediately cancelled; and
|
| d) |
the
Borrowers shall prepay that Lender’s participation in such Loan made to
the Borrowers on the last day of the Interest Period occurring after
the
Agent has notified the Borrowers or, if earlier, the date specified
by the
Lender in the notice delivered to the Agent (being no earlier than
the
last day of any applicable grace period permitted by
law).
|
| 7.4 |
Mandatory
prepayment - Change of
control
|
| a) |
If
a change of control occurs:
|
| (i) |
the
Borrowers shall promptly notify the Agent upon becoming aware of
such
event;
|
| (ii) |
a
Lender shall not be obliged to fund a proposed Loan;
and
|
| (iii) |
unless
otherwise approved by the Majority Lenders (such approval not to
be
unreasonably withheld), the Agent shall, by notice to the Borrowers,
cancel the Total Commitments and declare all outstanding Loans, together
with accrued interest, and all other amounts accrued under the Finance
Documents immediately due and payable, whereupon the Total Commitments
will be cancelled and all such outstanding amounts shall be paid
in full
within sixty (60) days.
|
| b) |
For
the purpose of paragraph a) above, the term “change
of control”
means an event by which two (2) or more persons acting in concert
or any
individual person:
|
| (i) |
acquires
legally and/or beneficially (directly or indirectly) in excess of
forty
per cent (40.00%) of the issued share capital and/or voting rights
of the
Guarantor; or
|
| (ii) |
has
the right or the ability to control (whether directly or indirectly),
the
affairs of or the composition of the majority of the board of director
(or
equivalent of it) of the Guarantor.
|
| 7.5 |
Voluntary
prepayment
|
The
Borrowers may, if they give the Agent not less than five (5) Business Days
prior
written notice, prepay the whole or any part of a Loan (but if in part, being
an
amount of minimum USD 100,000).
| 7.6 |
Voluntary
cancellation
|
| a) |
The
Borrowers may, if they give the Agent not less than three (3) Business
Days’ (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part, being an amount that reduces
the
Total Commitments by a minimum amount of USD 5,000,000 and in integral
multiples of USD 1,000,000.
|
| b) |
Any
cancellation under this Clause 7.6 shall reduce the Commitments of
the
Lenders rateably.
|
| 7.7 |
Right
of repayment and cancellation in relation to a single
Lender
|
| a) |
If
any of the Borrowers is required to pay a Lender any additional amount
in
accordance with Clauses 12 (Tax gross-up and indemnities) or 13 (Increased
costs), then (without prejudice to the obligations of the Borrowers
under
those Clauses) the Borrowers may, whilst the circumstances giving
rise to
the requirement or indemnification continues, give the Agent a notice
of
cancellation of the Commitment of that Lender and its intention to
procure
the repayment of that Lender’s participation in the
Loans.
|
| b) |
On
receipt of a notice referred to in paragraph a) above, the Commitment
of
that Lender shall immediately be reduced to
zero.
|
| c) |
On
the last day of each Interest Period which ends after the Borrowers
have
given notice under paragraph a) above (or, if earlier, the date specified
by the Borrowers in that notice), the Borrowers shall repay that
Lender’s
participation in that Loan.
|
| 7.8 |
Terms
and conditions for prepayments and
cancellation
|
| 7.8.1 |
Irrevocable
notice
|
Any
notice of prepayment or cancellation by the Borrowers under this Clause 7 shall
be irrevocable and, unless a contrary indication appears in this Agreement,
shall specify the date upon which the prepayment or cancellation is to be
made.
| 7.8.2 |
Additional
payments
|
Any
prepayment under this Agreement shall be made together with accrued interest
on
the amount prepaid and, subject to any Break Costs, without premium or penalty.
| 7.8.3 |
Time
of prepayment and cancellation
|
The
Borrowers shall not repay or prepay all or any part of a Loan or cancel all
or
any part of the Commitments except at the times and in the manner expressly
provided for in this Agreement.
| 7.8.4 |
No
reinstatement
|
No
amount
of the Total Commitments cancelled under this Agreement may subsequently be
reinstated.
| 7.8.5 |
Forwarding
of notice of prepayment and
cancellation
|
If
the
Agent receives a notice under this Clause 7 it shall promptly forward a copy
of
that notice to the Borrowers or the affected Lender, as
appropriate.
| 7.8.6 |
Application
|
Any
amount prepaid shall:
| a) |
in
respect of the Existing Vessels, be used to reduce the remaining
scheduled
reductions as set out in Clause 6.2 a) and Schedule
7
(Scheduled reductions) on a pro rata basis between the Existing Vessels,
and in inverse order of maturity;
|
| b) |
in
respect of the New Vessels, be used to reduce the remaining scheduled
reductions set out in Clause 6.2 b) (Repayment of Loans) on a pro
rata
basis between the New Vessels and in inverse order of maturity,
|
and
shall
in any event reduce rateably each Lender’s participation in the
Facility.
| 8 |
INTEREST
|
| 8.1 |
Calculation
of interest
|
The
rate
of interest for a Loan for each Interest Period is the percentage rate per
annum
which is the aggregate of:
| a) |
the
Margin;
|
| b) |
LIBOR;
and
|
| c) |
the
Mandatory Cost.
|
Effective
interest pursuant to the FA Act has been calculated by the Agent as set out
in a
separate notice from the Agent to the Borrowers.
| 8.2 |
Payment
of interest
|
The
Borrowers shall pay accrued interest on a Loan on each Interest Payment Date
(and if the Interest Period is longer than three (3) months, on the date falling
at three (3) monthly intervals after the first day of the Interest Period).
| 8.3 |
Default
interest
|
If
any of
the Borrowers fails to pay any amount payable by any of them under the Finance
Documents on its due date, interest shall accrue on the overdue amount from
the
due date and up to the date of actual payment (both before and after judgment)
at a rate determined by the Agent to be two per cent (2.00%) higher than the
rate which would have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent (acting
reasonably). Any interest accruing under this Clause 8.3 shall be immediately
payable by the Borrowers on demand by the Agent. Default interest (if unpaid)
arising on an overdue amount will be compounded with the overdue amount at
the
end of each Interest Period applicable to that overdue amount but will remain
immediately due and payable.
| 8.4 |
Notification
of rates of interest
|
The
Agent
shall promptly notify the Lenders and the Borrowers of the determination of
a
rate of interest under this Agreement.
| 9 |
INTEREST
PERIODS
|
| 9.1 |
Selection
of Interest Periods
|
| a) |
The
Borrowers may select an Interest Period for a Loan in the Drawdown
Notice,
however so that the first Interest Period for a Loan drawn following
drawing of the first Loan hereunder, shall end on the last day of
the then
current Interest Period for the first Loan
drawn.
|
| b) |
The
Borrowers may select an Interest Period of one (1), two (2), three
(3) or
six (6) months or any such other period agreed between the Borrowers
and
the Agent (on behalf of the Lenders). In addition, the Borrowers
may
select an Interest Period of a period of less than one (1) month,
if
necessary to ensure that there are sufficient Loans with an aggregate
amount equal to or greater than the reduction instalment which have
an
Interest Period ending on a repayment date for the scheduled reduction
to
occur.
|
| c) |
An
Interest Period for a Loan shall not extend beyond the Final Maturity
Date, but shall be shortened so that it ends on the Final Maturity
Date.
|
| d) |
Each
Interest Period for a Loan shall start on the Drawdown
Date.
|
| e) |
Each
Loan may have one (1) Interest Period
only.
|
| 9.2 |
Non-Business
Day
|
If
an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar
month
(if there is one) or the preceding Business Day (if there is not).
| 9.3 |
Notification
of Interest Periods
|
The
Agent
will notify the Borrowers and the Lenders of the Interest Periods determined
in
accordance with this Clause 9.
| 10 |
CHANGES
TO THE CALCULATION OF INTEREST
|
| 10.1 |
Market
disruption
|
| a) |
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender’s share of such Loan for
the Interest Period shall be the rate per annum which is the sum
of:
|
| (i) |
the
Margin;
|
| (ii) |
the
rate notified to the Agent by that Lender as soon as practicable
and in
any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum
the cost
to that Lender of funding its participation in such Loan from whatever
source it may reasonably select;
and
|
| (iii) |
Mandatory
Costs.
|
| b) |
In
this Agreement, “Market
Disruption Event”
means:
|
| (i) |
at
or about 11:00 hours (London time) on the Quotation Day for the relevant
Interest Period LIBOR is not available;
or
|
| (ii) |
before
close of business in London on the Quotation Day for the relevant
Interest
Period, the Agent receives notifications from a Lender or Lenders
(whose
participations in the Loan exceed fifty per cent (50.00%) of the
Loan)
that the cost to it or them of obtaining matching deposits in the
London
interbank market would be in excess of
LIBOR.
|
| 10.2 |
Alternative
basis of interest or
funding
|
If
a
Market Disruption Event occurs and the Agent or the Borrowers so require, the
Agent and the Borrowers shall enter into negotiations (for a period of not
more
than thirty (30) days) with a view to agreeing a substitute basis for
determining the rate of interest. Any alternative basis agreed pursuant to
this
Clause 10.2 shall, with the prior consent of all the Lenders and the Borrowers,
be binding on all Parties.
| 10.3 |
Break
Costs
|
The
Borrowers shall, within three (3) Business Days of demand by a Finance Party,
pay to that Finance Party its Break Cost attributable to all or any part of
a
Loan or Unpaid Sum being paid by any of the Borrowers on a day other than the
last day of an Interest Period for a Loan or Unpaid Sum.
Each
Lender shall, as soon as reasonably practicable after a demand by the Agent,
provide a certificate confirming the amount of its Break Cost for any Interest
Period in which they accrue.
| 11 |
FEES
|
| 11.1 |
Agency
fee
|
The
Borrowers shall pay to the Agent an agency fee in the amount and at the times
agreed in a separate Fee Letter.
| 11.2 |
Arrangement
fee
|
The
Borrowers shall pay to the Arranger an arrangement fee in the amount and at
the
times agreed in a separate Fee Letter.
| 11.3 |
Commitment
Fee
|
The
Borrower shall pay to the Agent (for distribution to the Lenders) a commitment
fee of:
| a) |
twenty-five
per cent (25.00%) per annum of the Margin accruing from the first
Drawdown
Date and up until 30 June 2007; and
|
| b) |
forty
per cent (40.00%) per annum of the Margin thereafter and up until
the
Final Maturity Date,
|
on
the
Lenders’ Available Commitment, and in any event payable quarterly in arrears on
the relevant Interest Payment Dates.
| 11.4 |
Other
fees
|
The
Borrowers shall pay to the Agent and the Arranger (as the case may be) (for
distribution among the Lenders according to a separate agreement/invitation)
the
fees in the amount and at the times agreed in the Fee Letter.
| 12 |
TAX
GROSS-UP AND INDEMNITIES
|
| 12.1 |
Taxes
|
| 12.1.1 |
No
withholding
|
All
payments by the Borrowers under the Finance Documents shall be made free and
clear of and without deduction or withholding for or on account of any Tax
or
any other governmental or public payment imposed by the laws of any jurisdiction
from which or through which such payment is made, unless a Tax deduction or
withholding is required by law.
| 12.1.2 |
Tax
gross-up
|
| a) |
The
Borrowers shall promptly upon becoming aware that any of them must
make a
Tax deduction or withholding (or that there is any change in the
rate or
the basis of a Tax deduction or withholding) notify the Agent accordingly.
Similarly, a Lender shall notify the Agent on becoming so aware in
respect
of a payment payable to that Lender. If the Agent receives such
notification from a Lender it shall notify the Borrowers and that
Lender.
|
| b) |
If
a Tax deduction or withholding is required by law to be made by any
of the
Borrowers:
|
| (i) |
the
amount of the payment due from the Borrowers shall be increased to
an
amount which (after making any Tax deduction or withholding) leaves
an
amount equal to the payment which would have been due if no Tax deduction
or withholding had been required;
and
|
| (ii) |
the
Borrowers shall make that Tax deduction or withholding within the
time
allowed and in the minimum amount required by
law.
|
| c) |
Within
thirty (30) days of making either a Tax deduction or withholding
or any
payment required in connection with that Tax deduction or withholding,
the
Borrowers shall deliver to the Agent for the Finance Party entitled
to the
payment evidence reasonably satisfactory to that Finance Party that
the
Tax deduction or withholding has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
|
| 12.2 |
Tax
indemnity
|
The
Borrowers shall (within three (3) Business Days of demand by the Agent) pay
to
the Agent for the account of the relevant Finance Party an amount equal to
the
loss, liability or cost which a Finance Party determines will be or has been
(directly or indirectly) suffered for or on account of any Tax by such Finance
Party in respect of a Finance Document, save for any Tax on Overall Net Income
assessed on a Finance Party or to the extent such loss, liability or cost is
compensated under Clause 12.1 (Tax gross-up).
| 12.3 |
VAT
|
All
amounts set out, or expressed to be payable under a Finance Document by any
Party to a Finance Document shall be deemed to be exclusive of any VAT. If
VAT
is chargeable, the Borrowers shall pay to the Agent for the account of such
Finance Party (in addition to the amount required pursuant to the Finance
Documents) an amount equal to such VAT.
| 13 |
INCREASED
COSTS
|
| 13.1 |
Increased
Costs
|
| a) |
The
Borrowers shall, upon demand from the Agent, pay for the account
of a
Finance Party the amount of any Increased Cost incurred by that Finance
Party or any of its affiliates as a result of (i) the introduction
of or
any change in (or in the interpretation, administration or application
of)
any law or regulation (including any laws and regulations implementing
new
or modified capital adequacy requirements) or (ii) compliance with
any law
or regulation made after the date of this
Agreement.
|
| b) |
In
this Agreement, the term “Increased
Costs”
means:
|
| (i) |
a
reduction in the rate of return from the Facility or on a Finance
Party’s
(or its affiliate’s) overall capital;
|
| (ii) |
an
additional or increased cost; or
|
| (iii) |
a
reduction of any amount due and payable under any Finance Document,
|
which
is
incurred or suffered by a Finance Party or any of its affiliates to the extent
that it is attributable to that Finance Party having entered into its
Commitments or funding or performing its obligations under any Finance Document.
| c) |
A
Finance Party intending to make a claim pursuant to this Clause 13.1
shall
notify the Agent of the event giving rise to the claim, following
which
the Agent shall promptly notify the Borrowers. Each Finance Party
shall as
soon as practicable after a demand by the Agent, provide a confirmation
showing the amount of its Increased
Costs.
|
| 13.2 |
Exceptions
|
Clause
13.1 (Increased Costs) does not apply to the extent any Increased Cost
is:
| a) |
attributable
to a Tax deduction or withholding required by law to be made by any
of the
Borrowers;
|
| b) |
compensated
for by Clause 12.1 (Tax gross-up) or Clause 12.2 (Tax Indemnity);
or
|
| c) |
attributable
to the wilful breach by the relevant Finance Party or its affiliates
of
any law or regulation.
|
| 14 |
OTHER
INDEMNITIES
|
| 14.1 |
Currency
indemnity
|
| a) |
If
any sum due from any of the Borrowers under the Finance Documents
(a
“Sum”),
or any order, judgement or award given or made in relation to a Sum,
has
to be converted from the currency (the “First
Currency”)
in which that Sum is payable into another currency (the “Second
Currency”)
for the purpose of:
|
| (i) |
making
or filing a claim or proof against any of the
Borrowers;
|
| (ii) |
obtaining
or enforcing an order, judgement or award in relation to any litigation
or
arbitration proceedings,
|
the
Borrowers shall as an independent obligation, within three (3) Business Days
of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including
any
discrepancy between (A) the rate of exchange used to convert that Sum from
the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
| b) |
The
Borrowers waive any right they may have in any jurisdiction to pay
any
amount under the Finance Documents in a currency or currency unit
other
than that in which it is expressed to be payable.
|
| 14.2 |
Other
indemnities
|
The
Borrowers shall within three (3) Business Days of demand, indemnify each Finance
Party against any costs, loss or liability incurred by that Finance Party as
a
result of:
| a) |
the
occurrence of any Event of Default;
|
| b) |
a
failure by any of the Borrowers and/or the Guarantor (as the case
may be)
to pay any amount due under the Finance Documents on its due date,
including without limitation, any cost, loss or liability arising
as a
result of Clause 27 (Sharing among the Finance
Parties);
|
| c) |
the
funding, or making arrangements to fund, its participation in a Drawing
or
a Loan (as the case may be) requested by the Borrowers in a Drawdown
Notice but not made by reason of the operation of any one or more
of the
provisions of this Agreement (other than by reason of default or
negligence by that Lender alone); or
|
| d) |
a
Loan (or part of a Loan) not being prepaid in accordance with a notice
of
prepayment given by the Borrowers.
|
| 14.3 |
Indemnity
to the Agent
|
The
Borrowers shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:
| a) |
investigating
any event which it reasonably believes is a possible Event of Default;
or
|
| b) |
acting
or verifying any notice, request or instruction which it reasonably
believes to be genuine, correct or appropriately
authorised.
|
| 15 |
MITIGATION
BY THE LENDERS
|
| 15.1 |
Mitigation
|
Without
in any way limiting the obligations of the Borrowers hereunder, each Finance
Party shall, in consultation with the Borrowers, take all reasonable steps
for a
period of fifteen (15) Business Days) to mitigate any circumstances which arise
and which would result in any amount becoming payable under or pursuant to,
or
cancelled pursuant to, any of:
| a) |
Clause
7.1 (Mandatory prepayment - Total Loss or
sale);
|
| b) |
Clause
7.2 (Mandatory prepayment - Market
Value);
|
| c) |
Clause
7.3 (Mandatory prepayment -
Illegality);
|
| d) |
Clause
7.4 (Mandatory prepayment - Change of
control);
|
| e) |
Clause
12 (Tax gross-up and indemnities); and
|
| f) |
Clause
13 (Increased Costs),
|
including
(but not limited to) transferring its rights and obligations under the Finance
Documents to another affiliate.
A
Finance
Party is not obliged to take any steps under this Clause 15.1 if, in the opinion
of that Finance Party (acting reasonably), to do so might be prejudicial to
it.
| 15.2 |
Indemnity
|
The
Borrowers shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under
Clause 15.1 (Mitigation).
| 16 |
COSTS
AND EXPENSES
|
| 16.1 |
Transaction
expenses
|
The
Borrowers shall promptly on demand pay to the Agent and the Arranger the amount
of all costs and expenses (including legal fees) reasonably incurred by any
of
them in connection with the negotiation, preparation, printing, perfection,
execution, registration and syndication of:
| a) |
this
Agreement and any other documents referred to in this Agreement;
and
|
| b) |
any
other Finance Documents executed after the date of this Agreement.
|
| 16.2 |
Amendment
and enforcement costs, etc
|
The
Borrowers shall, within three (3) Business Days of demand, reimburse the Agent
or another Finance Party for the amount of all costs and expenses (including
legal fees) reasonably incurred by it in connection with:
| a) |
the
granting of any release, waiver or consent under the Finance
Documents;
|
| b) |
any
amendment or variation of any of the Finance Documents;
and
|
| c) |
the
preservation, protection, enforcement or maintenance of, or attempt
to
preserve or enforce, any of the rights of the Finance Parties under
the
Finance Documents.
|
| 17 |
SECURITY
|
| 17.1 |
Security
- Loans
|
The
Borrowers’ obligations and liabilities under the Finance Documents, including
(without limitation) the Borrowers’ obligation to repay the Loans together with
all unpaid interest, default interest, commissions, charges, expenses and any
other derived liability whatsoever of any of the Borrowers towards the Lenders
and the Agent in connection with this Agreement, shall at any time until all
amounts due to the Lenders and the Agent hereunder have been paid and/or repaid
in full, be secured by:
| a) |
the
Mortgages;
|
| b) |
the
Deeds of Covenants;
|
| c) |
the
Assignment Agreements;
|
| d) |
the
Charterparty Assignments;
|
| e) |
the
Account Charges; and
|
| f) |
the
Guarantee.
|
The
Borrowers undertake to ensure that the above Security Documents are being duly
executed by the parties thereto in favour of the Agent (on behalf of the Finance
Parties) on or about the date of this Agreement, legally valid and in full
force
and effect, and to execute or procure the execution of such further
documentation as the Agent may reasonable require in order for the relevant
Finance Parties to maintain the security position envisaged
hereunder.
| 17.2 |
Security
and subordination - Swap
Agreement(s)
|
The
Agent
and the Lenders have agreed that the Borrowers’ obligations under the Swap
Agreement(s), if any, shall be secured by the Security Documents with the rights
of the Swap Bank, being fully subordinated to and ranking in all respects after
the rights of the Agent (on behalf of the Finance Parties under the Security
Documents set out in Clause 17.1 (Security - Loans).
| 17.3 |
Enforcement
of Security Documents - Swap
Agreements
|
The
Agent
(on behalf of the Finance Parties) will notify the Swap Bank as soon as
practicable possible if it intends to enforce any of its rights under the
Security Documents whereupon the Swap Bank shall have the option (to be
exercised immediately upon receipt of such notification if there is a case
of
emergency and the Agent (on behalf of the Finance Parties) has to act without
delay, or otherwise within ten (10) Business Days from receipt of such
notification during which period the Agent (on behalf of the Finance Parties)
will not complete enforcement of any if its said rights and powers) of paying
to
the Agent (on behalf of the Finance Parties) within the said period of ten
(10)
Business Days all monies then due to the Agent and the Finance Parties under
the
Agreement and the Security Documents against an assignment and transfer (on
a
non-recourse basis) of this Agreement and the Security Documents that may be
transferable to, and at the expense of, the Swap Bank in respect of all of
the
rights and powers of the Agent and the Finance Parties under this Agreement
and
the Security Documents. Such assignment and transfer shall be without any
express of implied warranty or representation by the Agent and the Finance
Parties as to the validity and enforceability of the Agreement and/or the
Security Documents and/or such related documents or as to the recoverability
of
any moneys thereunder. The Agent shall not be liable to the Swap Bank for any
failure or delay in giving notice of its intention to enforce and shall not
be
liable to the Swap Bank in respect of any loss, damage, or liability incurred
by
the Swap Bank arising out of or in connection with the Agent’s failure or delay
in giving such notice.
Without
prejudice to this Clause 17.3, nothing herein shall preclude the right of the
Agent to demand payment of any money secured by the Security Documents or
preclude the Agent from taking any action whatsoever in accordance with the
Security Documents.
| 17.4 |
Swap
Bank’s undertakings
|
The
Swap
Bank undertakes that:
| a) |
at
the same time as giving any formal notice to the Borrowers that an
event
of default (as defined in the relevant Swap Agreement) has occurred,
notify the Agent hereof;
|
| b) |
in
the event that the Agent declares an Event of Default under the Agreement
and following receipt by the Swap Bank of a notice from the Agent
pursuant
to Clause 17.3 (Enforcement of the Security Documents), any monies
received thereafter by the Swap Bank, shall forthwith be paid to
the Agent
until all sums due to the Finance Parties under the Agreement and/or
the
Security Documents have been fully
paid;
|
| c) |
it
will not make or allow to be made any material variation, amendment
or
supplement to the Swap Agreement(s) without the prior written consent
of
the Borrowers and the Agent; and
|
| d) |
it
shall not assign, transfer or otherwise dispose of its rights or
obligations under the Swap Agreement(s) to any other party unless
such
party has first entered into an agreement with the Agent relating
to the
subordination of its rights under the Security Documents in form
and
substance satisfactory to the Agent and the Finance
Parties.
|
| 18 |
REPRESENTATIONS
AND WARRANTIES
|
Each
of
the Borrowers represents and warrants to each Finance Party as
follows:
| 18.1 |
Status
|
| a) |
Each
of the Borrowers is a corporation, duly incorporated and validly
existing
under the laws of the Xxxxxxxx Island and has the power to own its
assets
and carry on its business as it is currently being conducted. Each
of
BHOBO One, BHOBO Two, BHOBO Three, RMJ OBO Shipping Ltd. and Sagamore
Shipping Ltd. is one hundred per cent (100.00%) owned by OBO Holdings
Ltd.
which is one hundred per cent (100.00%) owned by the
Guarantor.
|
| b) |
The
Guarantor is a corporation, duly incorporated and validly existing
under
the laws of Liberia and has the power to own its assets and carry
on its
business as it is currently being
conducted.
|
| 18.2 |
Binding
obligations
|
The
Transaction Documents to which any of the Borrowers and/or the Guarantor is
a
party constitute legal, valid, binding and enforceable obligations, and save
as
provided herein or therein and/or as have been or shall be completed prior
to
the relevant Drawdown Date, no registration, filing, payment of tax or fees
or
other formalities are necessary or desired to render the Transaction Documents
enforceable against any of the Borrowers and/or the Guarantor, and in respect
of
the Vessels, for the Mortgages to constitute valid and enforceable first
priority mortgages over the Vessels.
| 18.3 |
No
conflict with other
obligations
|
The
entry
into and performance by any of the Borrowers or the Guarantor of, and the
transactions contemplated by, the Transaction Documents do not and will not
conflict with:
| a) |
any
law or regulation or any order or decree of any governmental agency
or
court by which it is bound;
|
| b) |
any
constitutional documents of any of the Borrowers and/or the Guarantor
(as
the case may be); or
|
| c) |
any
agreement or document to which it is a party or by which it or any
of its
assets are bound.
|
| 18.4 |
Power
and authority
|
Each
of
the Borrowers and the Guarantor has the power to enter into, perform and
deliver, and have taken all necessary actions to authorise their entry into,
performance and delivery of, the Transaction Documents to which any of them
is a
party and the transactions contemplated by those Transaction Documents.
| 18.5 |
Authorisations
and consents
|
All
authorisations, approvals, consents and other matters, official or otherwise,
required by any of the Borrowers and/or the Guarantor in connection with the
entering into, performance, validity and enforceability of the Transaction
Documents and the transactions contemplated hereby and thereby have been
obtained or effected and are in full force and effect.
| 18.6 |
Taxes
|
Each
of
the Borrowers and the Guarantor has complied with all material taxation laws
in
all jurisdictions where any of them is subject to taxation and has paid all
material Taxes and other amounts due to governments and other public bodies.
No
claims are being asserted against any of them with respect to any Taxes or
other
payments due to public or governmental bodies. None of the Borrowers or the
Guarantor is required to make any withholdings or deductions for or on account
of Tax from any payment any of them may make under any of the Finance
Documents.
| 18.7 |
No
Default
|
No
Event
of Default is continuing or might reasonably be expected to result from the
making of a Drawing or a Loan (as the case may be). No other event or
circumstances is outstanding which constitutes a default or (with the expiry
of
a grace period, giving of notice or the making of any determination or any
combination of the foregoing) might constitute a default under any other
agreement or instrument which is binding on any of the Borrowers, the Guarantor
or any of their Subsidiaries or to which any of the Borrowers’, the Guarantor’s
(or any of their Subsidiaries’) assets are subject which might have a Material
Adverse Effect.
| 18.8 |
No
misleading information
|
Any
factual information, documents, exhibits or reports relating to any of the
Borrowers and/or the Guarantor and which have been furnished to the Finance
Parties by or on behalf of the Borrowers and/or the Guarantor are complete
and
correct in all material respects and do not contain any misstatement of fact
or
omit to state a fact making such information, exhibits or reports misleading
in
any material respect.
| 18.9 |
Original
Financial Statements
|
| a) |
Complete
and correct.
The Original Financial Statements fairly and accurately represent
the
assets, liabilities and the financial condition of the Borrowers
and the
Guarantor and have been prepared in accordance with GAAP consistently
applied.
|
| b) |
No
undisclosed liabilities.
As of the date of the Original Financial Statements, the Borrowers
and the
Guarantor had no material liabilities, direct or indirect, actual
or
contingent, and there is no material, unrealised or anticipated losses
from any unfavourable commitments not disclosed by or reserved against
in
the Original Financial Statements or in the notes
thereto.
|
| c) |
No
material change.
Since the date of the Original Financial Statements, there has been
no
material adverse change in the business, operations, assets or condition
(financial or otherwise) of the Borrowers and the
Guarantor.
|
| 18.10 |
Pari
passu ranking
|
The
Borrowers’ and the Guarantor’s respective payment obligations under the Finance
Documents rank at least pari
passu
with the
claims of all their other unsecured and unsubordinated creditors, except for
obligations preferred by mandatory law applying to companies
generally.
| 18.11 |
No
proceedings pending or threatened
|
No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency, which if adversely determined, might in the reasonably
opinion of the Lenders be expected to have a Material Adverse Effect, have
(to
the best of the Borrowers’ knowledge and belief) been started or threatened
against any of the Borrowers and/or the Guarantor.
| 18.12 |
No
existing Security Interest
|
Save
as
described in Clause 17 (Security), no Security Interest exists over all or
any
of the present or future revenues or assets of any of the
Borrowers.
| 18.13 |
No
immunity
|
The
execution and delivery by the Borrowers and/or the Guarantor of each Transaction
Document to which they are a party constitute, and their exercise of their
respective rights and performance of their obligations under each Transaction
Document will constitute, private and commercial acts performed for private
and
commercial purposes, and the Borrowers and/or the Guarantor will not (except
for
bankruptcy or any similar proceedings) be entitled to claim for themselves
or
any or all of their assets immunity from suit, execution, attachment or other
legal process in any other proceedings taken in Norway and/or the Xxxxxxxx
Islands and/or Liberia (as the case may be) in relation to any Transaction
Document.
| 18.14 |
No
winding-up
|
Neither
of the Borrowers nor the Guarantor has taken any corporate action nor have
any
other steps been taken or legal proceedings been started or threatened against
any of them for their reorganisation, winding-up, dissolution or administration
or for the appointment of a receiver, administrator, administrative receiver,
trustee or similar officer of any of them or any or all of their
assets.
| 18.15 |
Environmental
compliance
|
The
Borrowers have performed and observed in all material respects all Environmental
Laws, Environmental Approvals and all other material covenants, conditions,
restrictions or agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or discharge of any toxic
or
hazardous substance in connection with the Vessels.
| 18.16 |
Environmental
Claims
|
No
Environmental Claim has been commenced or (to the best of the Borrowers’
knowledge and belief) is threatened against any of the Borrowers or the
Charterers where that claim would be reasonably likely, if adversely determined,
to have a Material Adverse Effect on any of the Borrowers.
| 18.17 |
ISM
Code and ISPS Code
compliance
|
All
requirements of the ISM Code and the ISPS Code as they relate to the Borrowers,
the Managers, the Charterers and the Vessels have been complied with in all
material respects.
| 18.18 |
The
Vessels
|
The
Vessels will on the relevant Drawdown Date be:
| a) |
in
the absolute ownership of the relevant Borrower free and clear of
all
encumbrances (other than current crew wages and the relevant Mortgage)
and
the relevant Borrower will be the sole, legal and beneficial owner
of the
relevant Vessel;
|
| b) |
registered
in the name of the relevant Borrower with the Bahamas Ship Registry
(or
such other ship registry as approved by the Lenders) under the laws
and
flag of The Bahamas (or under such other flag as approved by the
Lenders);
|
| c) |
operationally
seaworthy in every way and fit for service;
and
|
| d) |
classed
with Det norske Veritas, free of all overdue requirements and
recommendations.
|
| 18.19 |
No
money laundering
|
The
Borrowers are acting for their own account in relation to the Loan and in
relation to the performance and the discharge of their obligations and
liabilities under the Finance Documents and the transactions and other
arrangements effected or contemplated by the Finance Documents to which any
of
the Borrowers and/or the Guarantor is a party, and the foregoing will not
involve or lead to contravention of any law, official requirement or other
regulatory measure or procedure implemented to combat money laundering (as
defined in Article 1 of the Directive (91/308/EEC) and Directive 2001/97 of
the
European Parliament and of 4 December 2001 amending Council Directive
91/308).
| 18.20 |
Repetition
|
The
representations and warranties set out in this Clause 18 are deemed to be made
by the Borrowers on the date of this Agreement and shall be deemed to be
repeated:
| a) |
on
the date of a Drawdown Notice;
|
| b) |
on
a Drawdown Date;
|
| c) |
on
the first day of each Interest Period;
and
|
| d) |
in
each Compliance Certificate forwarded to the Agent pursuant to Clause
19.2
(Compliance certificate) (or, if no such Compliance Certificate is
forwarded, on each day such certificate should have been forwarded
to the
Agent at the latest).
|
| 19 |
INFORMATION
UNDERTAKINGS
|
Each
of
the Borrowers gives the undertakings set out in this Clause 19 to each Finance
Party and such undertakings shall remain in force throughout the Security
Period.
| 19.1 |
Financial
statements
|
The
Borrowers shall supply to the Agent in sufficient copies for all of the
Lenders:
| a) |
as
soon as available, but no later than hundred and twenty (120) days
after
the end of each of their fiscal years, complete copies of the financial
reports of each of the Borrowers, all in reasonable detail, which
shall
include at least the balance sheet of each of the Borrowers as of
the end
of such year and the related statements of income and sources and
uses of
funds for such year, all in reasonable detail, unaudited, but certified
to
be true and complete by the chief financial officer of the Guarantor;
|
| b) |
as
soon as available, but not less than forty-five (45) days after the
end of
each of the first three (3) quarters of each fiscal year of the Borrowers,
a quarterly interim balance sheet of each of the Borrowers and the
related
profit and loss statements and sources and uses of funds, all in
reasonable detail, unaudited, but certified to be true and complete
by the
chief financial officer of the
Guarantor;
|
| c) |
as
soon as available but not later than one hundred and twenty (120)
days
after the end of each fiscal year of the Guarantor, complete copies
of the
consolidated financial reports of the Guarantor and its Subsidiaries,
all
in reasonable detail, which shall include at least the consolidated
balance sheet of the Guarantor and its Subsidiaries as of the end
of such
year and the related consolidated statements of income and sources
and
uses of funds for such year, which shall be audited reports prepared
by an
accounting firm acceptable to the
Agent;
|
| d) |
as
soon as available but not less than forty-five (45) days after the
end of
each of the first three (3) quarters of each fiscal year of the Guarantor,
a quarterly interim consolidated balance sheet of the Guarantor and
its
Subsidiaries and the related consolidated profit and loss statements
and
sources and uses of funds, all in reasonable detail, unaudited, but
certified to be true and complete by the chief financial officer
of the
Guarantor;
|
| e) |
within
ten (10) days of the filing thereof, copies of all registration statements
and reports on Forms 20-F and 8-K (or their equivalent) and other
material
filings which the Guarantor shall have filed with the Securities
and
Exchange Commission or any similar governmental
authority;
|
| f) |
promptly
upon the mailing thereof to the shareholders of the Guarantor, copies
of
all financial statements, reports, proxy statements and other
communications provided to the Guarantor’s
shareholders;
|
| g) |
within
ten (10) days of any of the Borrowers’ or the Guarantor’s receipt thereof,
copies of all audit letters or other correspondence from any external
auditors including material financial information in respect of any
of the
Borrowers or the Guarantor, as the case may be;
|
| h) |
within
December each year cash-flow projections for each of the Borrowers
and the
Guarantor (on a consolidated basis) for the twelve (12) months following
the date of such financial statements in a form acceptable to the
Agent
(on behalf of the Finance Parties); and
|
| i) |
such
other statements (including, without limitation, monthly consolidated
statements of operating revenues and expenses), lists of assets and
accounts, budgets, forecasts, reports and other financial information
with
respect to the theirs’ or the Guarantor’s business as the Agent may from
time to time reasonably request, certified to be true and complete
by the
chief financial officer of the
Guarantor.
|
| 19.2 |
Compliance
Certificate
|
The
Borrowers shall supply to the Agent, with each set of financial statements
delivered on 30 June and 30 December pursuant to Clause 19.1 (Financial
statements), a Compliance Certificate signed by the chief financial officer
of
the Guarantor setting out (in reasonable detail) computations as to compliance
with Clause 20 (Financial covenants) as at the date at which those financial
statements were drawn up.
| 19.3 |
Requirements
as to financial statements
|
The
Borrowers shall procure that each set of financial statements delivered pursuant
to Clause 19.1 (Financial statements) is prepared using GAAP, accounting
practices and financial reference periods consistent with those applied in
the
preparation of the Original Financial Statements for the Borrowers and/or the
Guarantor unless, in relation to any set of financial statements, it notifies
the Agent that there has been a change in GAAP, the accounting practices or
reference periods and its auditors deliver to the Agent:
| a) |
a
description of any change necessary for those financial statements
to
reflect GAAP, accounting practices and reference periods upon which
the
Borrower’s and/or the Guarantor’s Original Financial Statements were
prepared; and
|
| b) |
sufficient
information, in form and substance as may be reasonably required
by the
Agent, to enable the Lenders to determine whether Clause 20 (Financial
covenants) has been complied with and make an accurate comparison
between
the financial position indicated in those financial statements and
the
Borrowers’ and/or the Guarantor’s Original Financial
Statements.
|
Any
reference in this Agreement to those financial statements shall be construed
as
a reference to those financial statements as adjusted to reflect the basis
upon
which the Original Financial Statements were prepared.
| 19.4 |
Information
- miscellaneous
|
The
Borrowers shall notify the Agent and/or supply to the Agent (in sufficient
copies for all the Lenders, if the Agent so requests):
| a) |
all
material documents dispatched by the Borrowers and/or the Guarantor
to
their shareholders or their creditors generally and any press releases
at
the same time as they are
dispatched;
|
| b) |
promptly
upon becoming aware of them, the details of any litigation, arbitration
or
administrative proceedings which are current, threatened or pending
against any of the Borrowers and/or the Guarantor and/or the Charterers
and/or the Charter Guarantors, and which might, if adversely determined,
have a Material Adverse Effect; and
|
| c) |
promptly,
such further information regarding the business, assets and operations
(financial or otherwise) of any of the Borrowers and/or the Guarantor
as
any Finance Party (through the Agent) may reasonably
request.
|
| 19.5 |
Notification
of default
|
The
Borrowers shall notify the Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence.
| 19.6 |
Notification
of Environmental Claims
|
The
Borrowers shall inform the Agent in writing as soon as reasonably practicable
upon becoming aware of the same:
| a) |
if
any Environmental Claim has been commenced or (to the best of the
Borrowers’ knowledge and belief) is threatened against any of the
Borrowers or any of the Vessels;
and
|
| b) |
of
any fact and circumstances which will or are reasonably likely to
result
in any Environmental Claim being commenced or threatened against
any of
the Borrowers or any of the
Vessels,
|
where
the
claim would be reasonably likely, if determined against any of the Borrowers
or
the Vessels, to have a Material Adverse Effect.
| 19.7 |
“Know
your customer”
requirements
|
| a) |
Each
Borrower shall and shall procure that the Guarantor shall promptly
on the
request of any Finance Party supply to that Finance Party any
documentation or other evidence which is reasonably requested by
that
Finance Party (whether for itself, on behalf of any Finance Party
or any
prospective new Lender) to enable a Finance Party or prospective
new
Lender to carry out and be satisfied it has complied with all necessary
“know your customer” or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
|
| b) |
Each
Lender must promptly on the request of the Agent supply to the Agent
any
documentation or other evidence which is reasonably required by the
Agent
to carry out and be satisfied it has complied with all necessary
“know
your customer” or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
|
| 20 |
FINANCIAL
COVENANTS
|
| 20.1 |
Definitions
|
For
the
purposes of the financial covenants set out herein, the following definitions
shall apply:
| a) |
“Cash
and Cash Equivalents”
means, in respect of the Group, and at any
time:
|
| (i) |
cash
in hand or on deposits with any acceptable bank available for cash
management purposes;
|
| (ii) |
investment
grade certificates or deposit or investment grade marketable debt
securities, maturing within one (1) year after the relevant date
of
calculation; or
|
| (iii) |
any
other instrument, security or investment approved by the Majority
Lenders,
|
in
each
case, to which any member of the Group beneficially entitled at that time and
which is capable of being applied against the Total Debt,
| b) |
“EBITDA”
means, always in accordance with GAAP, the aggregate of operating
profits
of the Borrowers or the Guarantor (on a consolidated basis) for a
Measurement Period before Taxes, financial items, depreciations and
amortisations, excluding:
|
| (i) |
the
profit or loss attributable to any extraordinary or exceptional items
or
any write-offs on investments during that Measurement Period; and
|
| (ii) |
the
profit and loss arising on any disposal of fixed assets during that
Measurement Period save for any disposals made in the ordinary course
of
business.
|
| c) |
“Fixed
Charges”
means:
|
| (i) |
Net
Interest for any Measurement Period,
plus
|
| (ii) |
the
amount of scheduled repayments of the Facility and/or any other credit
facilities and the interest and repayment element under capitalised
charterparties in accordance with GAAP which fall due for repayment
or
payment during the Measurement Period, other than any amount prepaid
under
this Agreement,
|
less
free
and available cash (at the relevant Quarter Date) and marketable securities
(acceptable to the Agent (on behalf of the Lenders)) in excess of the minimum
requirement plus any dividends paid in such Measurement Period.
| d) |
“Measurement
Period”
means a rolling period of twelve (12) calendar months ending on a
Quarter
Date.
|
| e) |
“Quarter
Date”
means each 31 March, 30 June, 30 September and 31
December.
|
| f) |
“Net
Interest”
means all interest, arrangement fees and capitalised commissions
and
periodic fees (whether, in each case, paid or payable) as reported
in
accordance with GAAP being incurred (after having deducted any interest,
arrangement fee and capitalised income earned) by the Borrowers and
the
Guarantor (on a consolidated basis) during a Measurement Period.
|
| g) |
“Total
Debt”
means, on a consolidated basis, the aggregate book value of all
provisions, other long term liabilities and current liabilities of
the
Borrowers and the Guarantor (on a consolidated basis).
|
| h) |
“Value
Adjusted Equity”
means Value Adjusted Total Assets less Total
Debt.
|
| i) |
“Value
Adjusted Equity Ratio”
means Value Adjusted Equity divided by Value Adjusted Total
Assets.
|
| j) |
“Value
Adjusted Total Assets”
means, on a consolidated basis, the total market value of all of
the
assets of the Guarantor (on a consolidated
basis).
|
| 20.2 |
Financial
covenants
|
| 20.2.1 |
Minimum
Value Adjusted Equity Ratio
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
at
all times during the Security Period maintain a minimum Value Adjusted Equity
Ratio of minimum thirty per cent (30.00%).
| 20.2.2 |
Minimum
Value Adjusted Equity
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
at
all times during the Security Period maintain a minimum Value Adjusted Equity
of
USD 50,000,000.
| 20.2.3 |
Ratio
of EBITDA to Fixed Charges
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
ensure that the ratio of EBITDA to Fixed Charges shall be 1.25:1.00 or greater
on a twelve (12) months rolling basis on assumptions approved by the Agent.
| 20.2.4 |
Positive
working capital
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
at
all times ensure that its current assets exceed its current liabilities
(excluding the portion of long term debt), all as determined in accordance
with
GAAP.
| 20.2.5 |
Minimum
value
|
The
Borrowers shall ensure that the Market Value of the Vessels be at least one
hundred and twenty per cent (120.00%) of the Loans at any time from the earlier
of (i) the expiry of the Charterparty for MV “Xxxxx X. Xxxxx” and (ii) 30
September 2008.
| 20.2.6 |
Cash
and Cash Equivalents
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
at
all times ensure that it has Cash and Cash Equivalents equal to or greater
than
(i) USD 15,000,000 and (ii) six per cent (6.00%) of the long term debt of the
Guarantor.
| 20.2.7 |
Adjustments
|
The
Agent
(on behalf of the Lenders) is aware that the Guarantor (on a consolidated basis)
for the purpose of calculating the financial covenants under this Clause 20,
will have the right to adjust to the amounts booked as (i) average earnings
in
the profit and loss accounts and (ii) deferred income in the balance sheet
related to the Charterparties for MV “Rip Hudner”, MV “Xxxxxx Xxxxxxxxx” and MV
“Searose G”, to ensure that the actual income under such Charterparties is taken
into consideration in full.
| 21 |
GENERAL
UNDERTAKINGS
|
Each
of
the Borrowers gives the undertakings set out in this Clause 21 to each Finance
Party and such undertakings shall remain in force throughout the Security
Period.
| 21.1 |
Authorisations
etc.
|
The
Borrowers shall, and shall procure that the Guarantor shall,
promptly:
| a) |
obtain,
comply and do all that is necessary to maintain in full force and
effect;
and
|
| b) |
supply
certified copies to the Agent (if so requested)
of,
|
any
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration required under any law or regulation of its
jurisdiction of incorporation to enable them to perform their respective
obligations under the Transaction Documents and to ensure the legality,
validity, enforceability or admissibility in evidence in their respective
jurisdiction of incorporation of any Transaction Document.
| 21.2 |
Compliance
with laws
|
The
Borrowers shall and shall procure that the Guarantor shall comply in all
respects with all laws to which any of them may be subject, if failure so to
comply would materially impair their ability to perform their respective
obligations under the Transaction Documents.
| 21.3 |
Pari
passu ranking
|
The
Borrowers shall and shall procure that the Guarantor shall ensure that their
obligations under the Finance Documents do and will rank at least pari
passu
with all
their other present and future unsecured and unsubordinated obligations, except
for those obligations which are preferred by mandatory law applying to companies
generally in the jurisdictions of their incorporation or in the jurisdiction
in
the ports of calls.
| 21.4 |
Title
|
The
Borrowers will hold legal title to and own the entire beneficial interest in
the
Vessels, the Insurances and the Earnings, free of all Security Interest and
other interests and rights of any kind, except for those created by the
Financial Documents and as set out in Clause 21.5 (Negative
pledge).
| 21.5 |
Negative
pledge
|
The
Borrowers shall not create or permit to subsist any Security Interest over
any
of the Vessels nor upon any of their present or future undertakings, property,
assets, rights or revenues, other than:
| a) |
Security
Interest under the Security
Documents;
|
| b) |
Security
Interests arising in the ordinary course of business;
and
|
| c) |
Security
Interests consented to in writing by the Agent (acting upon instructions
from the Majority Lenders).
|
| 21.6 |
Borrowings
and guarantees
|
None
of
the Borrowers shall enter into any new Financial Indebtedness or assume or
grant
any guarantee liabilities, other than current liabilities related to the day
to
day operation of the Vessels.
| 21.7 |
Interest
hedging
|
The
Borrowers shall enter into interest hedging arrangements with the Swap Bank
only
and minimum fifty per cent (50.00%) of the total interest rate risk under the
Finance Documents shall be hedged in a manner acceptable in the sole discretion
of the Agent prior to the first Drawdown Date.
| 21.8 |
Disposals
|
None
of
the Borrowers shall sell, transfer or otherwise dispose of the whole or any
part
of their respective interest in the Vessels, the Earnings nor otherwise dispose
of all or any substantial part of their assets without the prior written consent
of the Agent (on behalf of the Lenders).
| 21.9 |
Distributions
|
Provided
that the Borrowers and the Guarantor are in compliance with the provisions
of
the Finance Documents to which they are respective parties (including, but
not
limited to, the financial covenants set out in Clause 20 (Financial covenants))
both before and following such distributions, the Borrowers and the Guarantor
may distribute dividends and make other distributions in whatever form to their
shareholder(s) or any other person(s) without the prior written consent of
the
Agent (on behalf of the Lenders).
| 21.10 |
Investment
restrictions
|
Provided
that the Borrowers are in compliance with the provisions of the Finance
Documents (including, but not limited to, the financial covenants in Clause
20
(Financial covenants)) both before and following such investments, the Borrowers
may make new investments without the prior written consent of the Agent (on
behalf of the Lenders).
| 21.11 |
Bank
accounts
|
The
Borrowers shall hold and maintain all their bank accounts (hereunder the
Earnings Account) with the Agent and/or Nordea Bank Finland Plc London Branch
and ensure that all Earnings are paid to the Earnings Account.
| 21.12 |
Shareholders
and change of control
|
The
Borrowers shall and shall procure that their shareholder(s) do not agree to
any
transfer of shares, the granting of options of ownership or change in ownership
of any of the Borrowers without the prior written consent of the Agent (on
behalf of the Lenders).
The
Borrowers shall procure that the Guarantor at all times during the Security
Period shall be controlled by Xx. Xxxxxxx X. Xxxxxx.
| 21.13 |
Change
of business etc.
|
| a) |
The
Borrowers shall, and shall procure that the Guarantor shall, ensure
that
no change is made to the general nature of the business of the Borrowers
or the Guarantor (as the case may be) from that carried out at the
date of
this Agreement (for the Borrowers being single-purpose companies
having no
other business than owning and commercial ownership of the
Vessels).
|
| b) |
None
of the Borrowers shall and the Borrowers shall procure that neither
the
Guarantor shall change their legal
names.
|
| 21.14 |
No
mergers etc.
|
The
Borrowers shall not and shall procure that the Guarantor shall not, enter into
any merger, amalgamation, de-merger, split-up, divest, consolidation with or
into any other person, be the subject of any reconstruction or change its type
of organization, jurisdiction of organization without the prior consent of
the
Agent (on behalf of the Lenders).
| 21.15 |
Environmental
compliance
|
The
Borrowers shall comply in all material respects with all Environmental Laws
subject to the terms and conditions of any Environmental Approval and obtain
and
maintain any Environmental Approval.
| 21.16 |
Commercial
management
|
The
Borrowers shall procure that the Commercial Manager shall continue to be
commercial manager of the Borrowers and the Vessels and there shall be no change
to such commercial management without the prior written consent of the
Agent.
| 21.17 |
Transaction
Documents
|
The
Borrowers shall procure that none of the Transaction Documents are amended
(save
for immaterial amendments which will have no impact of the Borrowers’ ability to
fulfil their obligations under the Finance Documents) or terminated, or any
waiver or any material terms thereof are agreed thereunder without the prior
written consent of the Agent (on behalf of the Finance Parties).
| 22 |
VESSELS’
COVENANTS
|
Each
of
the Borrowers gives the undertakings set out in this Clause 22 to each Finance
Party and such undertakings shall remain in force throughout the Security
Period.
| 22.1 |
Insurance
|
| a) |
The
Borrowers shall maintain or ensure that the Vessels are insured against
such risks, including but not limited to, Hull and Machinery, Protection
& Indemnity (including maximum cover for pollution liability as
normally adopted by the industry for similar vessels), Hull Interest
and/or Freight Interest, Loss of Hire and War Risk insurances, in
such
amounts, on such terms and with such insurers as the Agent shall
approve.
|
| b) |
The
value of the Hull and Machinery insurance shall cover at least eighty
per
cent (80.00%) of the Market Value, and the aggregate insurance value
of
the Vessels (except Protection & Indemnity and Loss of Hire) shall be
at least equal to the higher of the Market Value and one hundred
and
twenty per cent (120.00%) of the
Loans.
|
| c) |
The
Borrowers shall procure that the Agent (on behalf of the Finance
Parties
and the Swap Bank) is noted as first priority mortgagee in the insurance
contracts, together with the confirmation from the underwriters to
the
Agent thereof that the notice of assignment with regards to the Insurances
and the loss payable clauses are noted in the insurance contracts
and that
standard letters of undertaking are executed by the
insurers.
|
| d) |
Not
later than fourteen (14) days prior to the expiry date of the relevant
Insurances the Borrowers shall procure the delivery to the Agent
of a
certificate from the insurance broker(s) through whom the Insurances
referred to in litra a) have been renewed and taken out in respect
of the
Vessels with insurance values as required by litra b), that such
Insurances are in full force and effect and that the Agent (on behalf
of
the Finance Parties and the Swap Bank) have been noted by the relevant
insurers.
|
| e) |
The
Agent will, for the account of the Borrowers, take out a Mortgagee’s
Interest Insurance and a Mortgagee’s Interest - Additional Perils
Pollution Insurance (covering one hundred and ten per cent (110.00%)
of
the Loans) relevant to the Vessels.
|
| f) |
If
any of the Insurances referred to in litra a) form part of a fleet
cover,
the Borrowers shall procure that the insurers shall undertake to
the Agent
that they shall neither set-off against any claims in respect of
the
Vessels any premiums due in respect of other vessels under such fleet
cover or any premiums due for other insurances, nor cancel this Insurance
for reason of non-payment of premiums for other vessels under such
fleet
cover or of premiums for such other insurances, and shall undertake
to
issue a separate policy in respect of the Vessels if and when so
requested
by the Agent.
|
| g) |
The
Borrowers shall procure that the Vessels always are employed in conformity
with the terms of the instruments of Insurances (including any warranties
expressed or implied therein) and comply with such requirements as
to
extra premium or otherwise as the insurers may
prescribe.
|
| h) |
The
Borrowers will not make any change to the Insurances described under
litra
a) and b) above without the prior written consent of the Agent (on
behalf
of the Lenders).
|
| 22.2 |
Classification
and repairs
|
The
Borrowers shall keep the Vessels in a good, safe and efficient condition
consistent with first class ownership and management practice and in
particular:
| a) |
so
as to maintain its class at the highest level with Det norske Veritas
or
another classification society approved by the Agent, free of overdue
recommendations and qualifications;
and
|
| b) |
so
as to comply with the laws and regulations (statutory or otherwise)
applicable to vessels registered under the flag state of the Vessels
or to
vessels trading to any jurisdiction to which any of the Vessels may
trade
from time to time.
|
| 22.3 |
Market
Value
|
| a) |
The
Market Value of the Vessels shall at any time from the earlier of
(i) the
expiry of the Charterparty relating to MV “Xxxxx X. Xxxxx” and (ii) 30
September 2008 never be less than one hundred and twenty per cent.
(120%)
of the Loans.
|
| b) |
The
Borrowers shall from such time, at their own expense, arrange for
the
Market Value for all of the Vessels to be determined semi-annually
and
shall include the amount of such Market Value in the relevant Compliance
Certificate to be delivered together with the financial statements
for
each reporting date ending on 30 June and 31 December in any financial
year.
|
| 22.4 |
Restrictions
on chartering, appointment of Managers
etc.
|
The
Borrowers shall not without the prior written consent of the Agent (on behalf
of
the Majority Lenders):
| a) |
let
the Vessels on bareboat charter for any
period;
|
| b) |
enter
into any agreement related to the chartering and operation of any
of the
Vessels exceeding twelve (12) months or any pooling arrangements
related
to the Earnings of the Vessels;
|
| c) |
appoint
a technical manager for the Vessels other than the Technical Manager
or
agree to any alteration to the terms of the Technical Management
Agreement;
|
| d) |
change
the classification society of any of the Vessels;
or
|
| e) |
neither
terminate, cancel, amend (save for immaterial amendments which will
have
no impact on the Borrowers’ ability to fulfil their obligations under the
Finance Documents) or supplement any of the Charterparties nor assign
any
of the Charterparties to any other
person.
|
| 22.5 |
Notification
of certain events
|
The
Borrowers shall immediately notify the Agent of:
| a) |
any
accident to any of the Vessels involving repairs where the costs
will or
is likely to exceed USD 500,000 (or the equivalent in any other
currency);
|
| b) |
any
requirement or recommendation made by any insurer or classification
society or by any competent authority which is not, or cannot be,
immediately complied with;
|
| c) |
any
exercise or purported exercise of any lien on any of the Vessels,
the
Earnings or the Insurances;
|
| d) |
any
occurrence as a result of which any of the Vessels has become or
is, by
the passing of time or otherwise, likely to become a Total Loss;
and
|
| e) |
any
claim for a material breach of the ISM Code or the ISPS Code being
made
against any of the Borrowers, the Managers, the Charterers or otherwise
in
connection with the Vessels.
|
| 22.6 |
Operation
of the Vessels
|
| a) |
The
Borrowers shall comply, or procure the compliance in all material
respects
with the ISM Code and the ISPS Code, all Environmental Laws and all
other
laws or regulations relating to the Vessels, their ownership, operation
and management or to the business of any of the Borrowers and shall
not
employ any of the Vessels nor allow their
employment:
|
| (i) |
in
any manner contrary to law or regulation in any relevant jurisdiction
including but not limited to the ISM Code;
and
|
| (ii) |
in
the event of hostilities in any part of the world (whether war is
declared
or not), in any zone which is declared a war zone by any government
or by
the war risk insurers of the Vessels unless the Borrowers have (at
their
expense) effected any special, additional or modified insurance cover
which shall be necessary or customary for first class shipowners
trading
vessels within the territorial waters of such country at such time
and has
provided evidence of such cover to the
Agent.
|
Without
limitation to the generality of this Clause 22.6, the Borrowers shall comply
or
procure compliance, with, as applicable, all requirements of the International
Convention for the Safety of Life at Sea (SOLAS) 1974 as adopted, amended or
replaced from time to time including, but not limited to, the STCW 95, the
ISM
Code or the ISPS Code.
| b) |
The
Vessels shall be employed under the Charterparties or such other
charterparty as approved by the Agent (on behalf of the Finance Parties)
in writing.
|
| 22.7 |
ISM
Code compliance
|
The
Borrowers will:
| a) |
procure
that the Vessels remain subject to a SMS for the duration of the
Facility;
|
| b) |
procure
that a valid and current SMC is maintained for each of the Vessels
for the
duration of the Facility;
|
| c) |
if
not themselves, procure that the Technical Manager of the Vessels
maintains a valid and current DOC for the duration of the
Facility;
|
| d) |
immediately
notify the Agent in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the SMC of any of the
Vessels
or of the DOC of the Technical Manager;
and
|
| e) |
immediately
notify the Agent in writing of any “accident” or “major non-conformity”,
each as those terms is defined in the Guidelines in the application
of the
IMO International Safety Management Code issued by the International
Chamber of Shipping and International Shipping
Federation.
|
| 22.8 |
Inspections
and class records
|
| a) |
The
Borrowers shall permit, and shall procure that any charterers permit,
one
person appointed by the Agent to inspect the Vessels once a year
for the
account of the Borrowers upon the Agent giving prior written
notice.
|
| b) |
The
Borrowers shall instruct the classification society to send to the
Agent,
following a written request from the Agent, copies of all class records
held by the classification society in relation to the
Vessels.
|
| 22.9 |
Surveys
|
The
Borrowers shall submit to or cause the Vessels to be submitted to such periodic
or other surveys as may be required for classification purposes and to ensure
full compliance with regulations of the flag state of the Vessels and to supply
or to cause to be supplied to the Agent copies of all survey reports and
confirmations of class issued in respect thereof whenever such is required
by
the Agent, however limited to once a year.
| 22.10 |
Arrest
|
The
Borrowers shall promptly pay and discharge:
| a) |
all
liabilities which give or may give rise to maritime or possessory
liens on
or claims enforceable against any of the Vessels, the Earnings or
the
Insurances;
|
| b) |
all
tolls, taxes, dues, fines, penalties and other amounts charged in
respect
of any of the Vessels, the Earnings or the Insurances;
and
|
| c) |
all
other outgoings whatsoever in respect of any of the Vessels, the
Earnings
and the Insurances,
|
and
forthwith upon receiving a notice of arrest of any of the Vessels, or their
detention in exercise or purported exercise of any lien or claim, the Borrowers
shall or shall procure that the Charterers shall procure their release by
providing bail or providing the provision of security or otherwise as the
circumstances may require.
| 22.11 |
Total
Loss
|
In
the
event that any of the Vessels shall suffer a Total Loss, the Borrowers shall,
within a period of ninety (90) days after the Total Loss Date, obtain and
present to the Agent, a written confirmation from the relevant insurers that
the
claim relating to the Total Loss has been accepted in full, and the insurance
proceeds shall be applied in prepayment of the Loan in accordance with Clause
7.1 (Mandatory prepayment - Total Loss or sale).
| 22.12 |
Flag,
name and registry
|
The
Borrowers shall not, without the prior written consent of the Agent (on behalf
of the Lenders), change the flag, name or registry of any of the Vessels.
| 23 |
EVENTS
OF DEFAULT
|
Each
of
the events or circumstances set out in this Clause 23 is an Event of
Default.
| 23.1 |
Non-payment
|
The
Borrowers do not pay on the due date any amount payable pursuant to a Finance
Document at the place and in the currency in which it is expressed to be payable
unless:
| a) |
their
failure to pay is caused by administrative or technical error affecting
the transfer of funds despite timely payment instructions by the
Borrowers; and
|
| b) |
payment
is made within three (3) Business Days of its due date.
|
| 23.2 |
Financial
covenants
|
Any
requirement in Clause 20 (Financial covenants) is not satisfied.
| 23.3 |
Other
obligations
|
| a) |
The
Borrowers do not comply with any provision of the Finance Documents
(other
than those referred to in Clause 23.1 (Non-payment) and Clause 23.2
(Financial covenants)).
|
| b) |
No
Event of Default under litra a) above will occur if the failure to
comply
is capable of remedy and is remedied within thirty (30) days of the
Agent
giving notice to the Borrowers or any of the Borrowers becoming aware
of
the failure to comply.
|
| 23.4 |
Misrepresentations
|
Any
representation or statement made or deemed to be made by the Borrowers and/or
the Guarantor in the Finance Documents or any other document delivered by or
on
behalf of any of the Borrowers and/or the Guarantor under or in connection
with
any of the Finance Documents is or proves to have been incorrect or misleading
in any material respect when made or deemed to be made.
| 23.5 |
Cross
default
|
| a) |
Any
Financial Indebtedness of any of the Borrowers and/or the Guarantor
and/or
any of the Charterers and/or any of the Charter Guarantors is not
paid
when due nor within any originally applicable grace
period.
|
| b) |
Any
Financial Indebtedness of any of the Borrowers and/or the Guarantor
and/or
any of the Charterers and/or any of the Charter Guarantors is declared
to
be or otherwise becomes due and payable prior to its specified maturity
as
a result of an event of default (however described).
|
| c) |
Any
commitment for any Financial Indebtedness of any of the Borrowers
and/or
the Guarantor and/or any of the Charterers and/or any of the Charter
Guarantors is cancelled or suspended by a creditor of any of the
Borrowers
and/or the Guarantor and/or any of the Charterers and/or any of the
Charter Guarantors as a result of an event of default (however
described).
|
| d) |
Any
creditor of any of the Borrowers and/or the Guarantor and/or any
of the
Charterers and/or any of the Charter Guarantors becomes entitled
to
declare any Financial Indebtedness of any of the Borrowers and/or
the
Guarantor and/or any of the Charterers and/or any of the Charter
Guarantors due and payable prior to its specified maturity as a result
of
an event of default (however
described).
|
However
so that any event or circumstance as set out in this Clause 23.5 litra a) -
d)
with regard to the Charterers only, shall not constitute an Event of Default
unless such event or circumstance may (in the reasonable opinion of the Agent)
interfere with or effect the ability of the Charterers to comply with any and
all of its obligations under the Charterparties (hereunder the obligation to
pay
charter hire) in any manner whatsoever.
| 23.6 |
Insolvency
|
| a) |
Any
of the Borrowers and/or the Guarantor are unable or admits inability
to
pay their debts as they fall due, suspends making payments on any
of their
respective debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of their respective
creditors with a view to rescheduling any of their
indebtedness.
|
| b) |
The
value of the assets of any of the Borrowers and/or the Guarantor
(as the
case may be) is less than their respective liabilities (taking into
account contingent and prospective
liabilities).
|
| c) |
A
moratorium is declared in respect of any indebtedness of any of the
Borrowers and/or the Guarantor (as the case may
be).
|
| 23.7 |
Insolvency
proceedings
|
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
| a) |
the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme or arrangement or otherwise) of any of the Borrowers
and/or the Guarantor;
|
| b) |
a
composition, compromise, assignment or arrangement with any creditor
of
any of the Borrowers and/or the
Guarantor;
|
| c) |
the
appointment of a liquidator, receiver, administrative receiver,
administrator or other similar officer in respect of any of the Borrowers
and/or the Guarantor; or
|
| d) |
enforcement
of any Security Interest over any assets of any of the Borrower and/or
the
Guarantor.
|
| 23.8 |
Creditor’s
process
|
Any
expropriation, attachment, sequestration, distress or execution affects any
asset or assets of any of the Borrowers and/or the Guarantor having an aggregate
value of USD 500,000 and is not discharged within thirty (30) days.
| 23.9 |
Unlawfulness
|
It
is or
becomes unlawful for any of the Borrowers and/or the Guarantor to perform any
of
their obligations under the Finance Documents.
| 23.10 |
Material
adverse change
|
Any
event
or series of events occur which, in the opinion of the Agent (on behalf of
the
Lenders), might have a Material Adverse Effect on any of the Borrowers and/or
the Guarantor and/or any of the Charterers and/or any of the Charter Guarantors.
| 23.11 |
Permits
|
Any
licence, consent, permission or approval required in order to enforce, complete
or perform any of the Transaction Documents is revoked, terminated or modified
having a Material Adverse Effect on any of the Borrowers and/or the Guarantor
(as the case may be).
| 23.12 |
Litigation
|
There
is
current, pending or threatened any claims, litigation, arbitration or
administrative proceedings against any of the Borrowers and/or the Guarantor
which might, if adversely determined, have a Material Adverse Effect on any
of
the Borrowers and/or Guarantor.
| 23.13 |
Acceleration
|
Upon
the
occurrence of an Event of Default, the Agent may, and shall if so directed
by
the Majority Lenders, by written notice to the Borrowers:
| a) |
cancel
the Total Commitments whereupon they shall immediately be
cancelled;
|
| b) |
declare
that all or part of the Loans together with accrued interest, and
all
other amounts accrued or outstanding under the Finance Documents,
be
either immediately due and payable and/or payable upon demand, whereupon
they shall become either immediately due and payable or payable on
demand;
and/or
|
| c) |
start
enforcement in respect of the Security Interests established by the
Security Documents; and/or
|
| d) |
take
any other action, with or without notice to the Borrowers, exercise
any
other right or pursue any other remedy conferred upon the Agent or
the
Finance Parties by any of the Finance Documents or by any applicable
law
or regulation or otherwise as a consequence of such Event of
Default.
|
| 24 |
CHANGES
TO THE LENDERS
|
| 24.1 |
Assignments
and transfers by the
Lenders
|
A
Lender
(the “Existing
Lender”)
may at
any time assign, transfer or have assumed its rights or obligations under the
Finance Documents (a “Transfer”)
to:
| a) |
another
Existing Lender or an affiliate of an Existing Lender;
or
|
| b) |
with
the prior consent of the Borrowers (such consent not to be unreasonably
withheld or delayed, and is not required in the case an Event of
Default
has occurred), another bank or financial institution or to a trust,
fund
or other entity which is regularly engaged in or established for
the
purpose of making, purchasing or investing in loans, securities or
other
financial assets (the “New
Lender”),
|
provided
that the minimum amount of such transfer shall be USD 5,000,000.
| 24.2 |
Limitations
of responsibility of Existing
Lenders
|
| 24.2.1 |
Borrowers’
performance, etc
|
Unless
expressly agreed to the contrary, an Existing Lender makes no representation
or
warranty and assumes no responsibility to the New Lender for:
| a) |
the
legality, validity, effectiveness, adequacy or enforceability of
the
Finance Documents or any other
documents;
|
| b) |
the
financial condition of the
Borrowers;
|
| c) |
the
performance and observance by the Borrowers of their obligations
under the
Finance Documents or any other documents;
or
|
| d) |
the
accuracy of any statements (whether written or oral) made in or in
connection with the Finance Documents or any other
document.
|
| 24.2.2 |
New
Lender’s own credit appraisal,
etc
|
Each
New
Lender confirms to the Existing Lender and the other Finance Parties that
it:
| a) |
has
made (and will continue to make) its own independent investigation
and
assessment of the financial condition and affairs of the Borrowers
and
their related entities in connection with its participation in this
Agreement and has not relied exclusively on any information provided
to it
by the Existing Lender in connection with any Finance Document;
and
|
| b) |
will
continue to make its own independent appraisal of the creditworthiness
of
the Borrowers and their related entities whilst any amount is or
may be
outstanding under the Finance Documents or any Commitment is in
force.
|
| 24.2.3 |
Re-transfer
to an Existing Lender, etc
|
Nothing
in any Finance Document obliges an Existing Lender to:
| a) |
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 24;
or
|
| b) |
support
any losses directly or indirectly incurred by the New Lender by reason
of
the non-performance by the Borrowers of their obligations under the
Finance Documents or otherwise.
|
| 24.3 |
Procedure
for transfer
|
Any
Transfer shall be effected as follows:
| a) |
the
Existing Lender must notify the Agent of its intention to Transfer
all or
part of its rights and obligations by delivering a duly completed
Transfer
Certificate to the Agent duly executed by the Existing Lender and
the New
Lender;
|
| b) |
subject
to Clause 24.1 (Assignments and transfers by the Lenders), the Agent
shall
as soon as reasonable possible after receipt of a Transfer Certificate
execute the Transfer Certificate and deliver a copy of the same to
each of
the Existing Lender and the New Lender;
and
|
| c) |
subject
to Clause 24.1 (Assignments and transfers by the Lenders), the Transfer
shall become effective on the Transfer
Date.
|
| 24.4 |
Effects
of the Transfer
|
On
the
Transfer Date:
| a) |
to
the extent that in the Transfer Certificate the Existing Lender seeks
to
transfer its rights and obligations under the Finance Documents,
the
Borrowers and the Existing Lender shall be released from further
obligations to one another under the Finance Documents and their
respective rights against one another under the Finance Documents
shall be
cancelled (the “Discharged
Rights and Obligations”);
|
| b) |
the
Borrowers and the New Lender shall assume obligations towards one
another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as the Borrowers and the New
Lender
have assumed and/or acquired the same in place of the Borrowers and
the
Existing Lender;
|
| c) |
the
Agent, the Arranger, the New Lender and the other Lenders shall acquire
the same rights and assume the same obligations between themselves
as they
would have acquired and assumed had the New Lender been an original
Lender
hereunder with the rights and/or obligations acquired or assumed
by it as
a result of the Transfer and to that extent the Agent, the Arranger
and
the Existing Lender shall each be released from further obligations
to
each other under the Finance Documents;
and
|
| d) |
the
New Lender shall become a Party as a
“Lender”.
|
| 24.5 |
Further
assurances
|
The
Borrowers undertake to procure that in relation to any Transfer, the Borrowers
shall (at their own cost) at the request of the Agent execute such documents
as
may in the discretion of the Agent be necessary to ensure that the New Lender
attains the benefit of the Finance Documents.
| 24.6 |
Disclosure
of information
|
Any
Lender may disclose:
| a) |
to
any of its affiliates and a potential assignee;
|
| b) |
to
whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under
which
payments are to be made by reference to, this Agreement or the Borrowers;
and
|
| c) |
to
whom, to the extent that, information is required to be discloses
by any
applicable law,
|
such
information about the Borrowers and the Finance Documents as that Lender shall
consider appropriate.
| 24.7 |
Assignment
or transfer fee
|
The
New
Lender shall, on the date upon which a Transfer takes effect, pay to the Agent
(for its own account) a fee of USD 3,500.
| 25 |
CHANGES
TO THE BORROWERS
|
| 25.1 |
Assignments
and transfer by Borrowers
|
No
Borrower may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
| 25.2 |
Additional
Borrowers
|
| a) |
Subject
to the compliance with the provisions of Clause 19.7 (“Know your customer”
checks), OBO Holdings Ltd. may request that any of its Subsidiaries
becomes an Additional Borrower. The Subsidiary shall become an Additional
Borrower if:
|
| (i) |
OBO
Holdings Ltd. delivers to the Agent a duly completed and executed
Accession Letter; and
|
| (ii) |
the
Agent has received all of the documents and other evidence listed
in Part
III of Schedule
2
(Conditions precedent) in relation to that Additional Borrower in
form and
substance satisfactory to the
Agent.
|
| b) |
The
Agent shall notify OBO Holdings Ltd. and the Lenders promptly upon
being
satisfied that it has received (in form and substance satisfactory
to it)
all the documents and other evidence listed in Part III of Schedule
2
(Conditions precedent).
|
| 25.3 |
Repetition
of representations
|
Delivery
of an Accession Letter constitutes confirmation by the relevant Subsidiary
that
the each of the representations and warranties set out in Clause 18
(Representations and warranties) are true and correct in relation to it as
at
the date of delivery as if made by reference to the facts and circumstances
then
existing.
| 26 |
ROLE
OF THE AGENT AND THE
ARRANGER
|
| 26.1 |
Appointment
and authorisation of the
Agent
|
| a) |
Each
other Finance Party and the Swap Bank appoint the Agent to act as
its
facility agent and security agent under and in connection with the
Finance
Documents.
|
| b) |
Each
other Finance Party and the Swap Bank authorises the Agent to exercise
the
rights, powers, authorities and discretions specifically given to
the
Agent under or in connection with the Finance Documents together
with any
other incidental rights, powers, authorities and
discretions.
|
| 26.2 |
Duties
of the Agent
|
The
Agent
shall not have any duties or responsibilities except those expressly set forth
in the Finance Documents, and the Agent’s duties under the Finance Documents are
solely mechanical and administrative in nature. The Agent shall:
| a) |
promptly
forward to a Party the original or a copy of any document which is
delivered to it in its capacity as Agent for the attention of that
Party
by another Party;
|
| b) |
supply
the other Finance Parties and the Swap Bank with all material information
which the Agent receives from the
Borrowers;
|
| c) |
if
it receives notice from a Party referring to this Agreement, describing
an
Event of Default and stating that the circumstance is an Event of
Default,
promptly notify the Finance Parties and the Swap Bank;
and
|
| d) |
from
it receives sufficient information; promptly notify the Lenders of
the
occurrence of any Event of Default arising under Clause 23 (Events
of
Default).
|
| 26.3 |
Role
of the Arranger
|
Except
as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
| 26.4 |
Relationship
|
The
relationship between the Agent and the other Finance Parties and the Swap Bank
is that of agent and principal only. Nothing in this Agreement shall be
construed as to constitute the Agent or the Finance Parties as trustee or
fiduciary for any other person, and neither the Agent nor the Finance Parties
or
the Swap Bank shall be bound to account to any Finance Party for any sum or
the
profit element of any sum received by it for its own account.
| 26.5 |
Business
with the Borrowers
|
The
Agent
and the Arranger may accept deposits from, lend money to and generally engage
in
any kind of banking or other business with any of the Borrowers.
| 26.6 |
Rights
and discretions of the
Agent
|
| a) |
The
Agent may rely on:
|
| (i) |
any
representation, notice or document believed by it to be genuine,
correct
and appropriately authorised; and
|
| (ii) |
any
statement made by a director, authorised signatory or employee of
any
person regarding any matters which may reasonably be assumed to be
within
his knowledge or within his power to
verify.
|
| b) |
The
Agent may assume (unless it has received notice to the contrary in
its
capacity as Agent for the Lenders)
that:
|
| (i) |
no
Event of Default has occurred (unless it has actual knowledge of
an Event
of Default under Clause 23.1 (Non-payment));
and
|
| (ii) |
any
right, power, authority or discretion vested in any Party or the
Majority
Lenders has not been exercised.
|
| c) |
The
Agent may engage, pay for and rely on the advise or services of any
lawyers, accountants, surveyors or other
experts.
|
| d) |
The
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
| e) |
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this
Agreement.
|
| f) |
Notwithstanding
any other provision of any Finance Document to the contrary, neither
the
Agent nor the Arranger is obliged to do or omit to do anything if
it would
or might in its reasonable opinion constitute a breach of any law
or
regulation or a breach of duty of confidentiality or render it liable
to
any person.
|
| 26.7 |
Majority
Lenders’ instructions
|
| a) |
Unless
a contrary indication appears in a Finance Document, the Agent shall
(i)
exercise any right, power, authority or discretion vested in it as
Agent
in accordance with any instructions given to it by the Majority Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising
any
right, power, authority or discretion vested in it as Agent) and
(ii) not
be liable for any act (or omission) if it acts in accordance with
an
instruction of the Majority
Lenders.
|
| b) |
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
| c) |
The
Agent may refrain from acting in accordance with the instructions
of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
| d) |
In
the absence of instructions from the Majority Lenders (or, if appropriate,
the Lenders) the Agent may act (or refrain from acting) as it considers
to
be in the best interest of the
Lenders.
|
| e) |
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender’s consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
| 26.8 |
Responsibility
for documentation
|
Neither
the Agent nor the Arranger:
| a) |
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Arranger,
the Borrowers or any other person in or in connection with any Finance
Document; or
|
| b) |
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made in anticipation of or in connection
with
any Finance Document.
|
| 26.9 |
Exclusion
of liability
|
| a) |
Without
limiting litra b) below, the Agent will not be liable for any action
taken
by it under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful
misconduct.
|
| b) |
No
Party (other than the Agent) may take any proceedings against any
officer,
employee or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any kind
by that
officer, employee or agent in relation to any Finance Document and
any
officer, employee and agent of the Agent may rely on this
Clause.
|
| c) |
The
Agent will not be liable for any delay (or any related consequences)
in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps
as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by
the
Agent for that purpose.
|
| d) |
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry
out any
“know your customer” or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent and the Arranger
that
it is solely responsible for any such checks it is required to carry
out
and that it may not rely on any statement in relation to such checks
made
by the Agent or the Arranger.
|
| 26.10 |
Lenders’
indemnity to the Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then reduced to zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Agent,
within three (3) Business Days of demand, against any cost, loss or liability
incurred by the Agent (otherwise than by reason of the Agent’s gross negligence
or wilful misconduct) in acting as Agent under the Finance Documents (unless
the
Agent has been reimbursed by the Borrowers or the Guarantor pursuant to a
Finance Document).
| 26.11 |
Resignation
of the Agent
|
| a) |
The
Agent may resign and appoint one of its affiliates as successor by
giving
notice to the other Finance Parties, the Swap Bank and the Borrowers.
|
| b) |
Alternatively
the Agent may resign by giving notice to the other Finance Parties,
the
Swap Bank and the Borrowers in which case the Majority Lenders (after
consultation with the Borrowers) may appoint a successor
Agent.
|
| c) |
If
the Majority Lender have not appointed a successor Agent in accordance
with litra b) above within thirty (30) days after notice of resignation
was given, the Agent (after consultation with the Borrowers) may
appoint a
successor Agent.
|
| d) |
The
retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing
its
functions as Agent under the Finance
Documents.
|
| e) |
The
Agent’s resignation notice shall only take effect upon appointment of a
successor.
|
| f) |
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but
shall
remain entitled to the benefit of this Clause 26. Its successor and
each
of the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original
Party.
|
| g) |
After
consultation with the Borrowers, the Majority Lenders may, by notice
to
the Agent, require it to resign in accordance with litra b) above.
In this
event, the Agent shall resign in accordance with litra b)
above.
|
| 26.12 |
Confidentiality
|
| a) |
In
acting as agent for the Finance Parties and the Swap Bank, the Agent
shall
be regarded as acting through its agency division which shall be
treated
as a separate entity from any other of its divisions or departments.
|
| b) |
If
information is received by another division or department of the
Agent, it
may be treated as confidential to that division or department and
the
Agent shall not be deemed to have notice of
it.
|
| 26.13 |
Credit
appraisal by the Lenders
|
Without
affecting the responsibility of the Borrowers for information supplied by any
of
them or on their behalf in connection with any Finance Document, each Lender
confirms to the Agent and the Arranger that it has been, and will continue
to
be, solely responsible for making its own independent appraisal and
investigation of all risks arising under or in connection with any Finance
Document, including (without limitation):
| a) |
the
financial condition, status and nature of the Borrowers and/or the
Guarantor;
|
| b) |
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document and any other agreement, arrangement or document
entered
into, made or executed in anticipation of, under or in connection
with any
Finance Document; and
|
| c) |
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document, entered
into,
made or executed in anticipation of, under or in connection with
any
Finance Document.
|
| 26.14 |
Conduct
of business of the Finance
Parties
|
No
provision of this Agreement will:
| a) |
interfere
with the right of any Finance Party or the Swap Bank to arrange its
affairs (tax or otherwise) in whatever manner it thinks
fit;
|
| b) |
oblige
any Finance Party or the Swap Bank to investigate or claim any credit,
relief, remission or repayment available to it or to the extent,
order or
manner of any claim; or
|
| c) |
oblige
any Finance Party or the Swap Bank to disclose any information relating
to
its affairs (tax or otherwise) or any computations in respect of
Tax.
|
| 27 |
SHARING
AMONG THE FINANCE PARTIES
|
| 27.1 |
Payment
to Finance Parties
|
If
a
Finance Party (a “Recovering
Finance Party”)
receives or recovers any amount from the Borrowers other than in accordance
with
Clause 28 (Payment mechanics) and applies that amount to a payment due under
the
Finance Documents then:
| a) |
the
Recovering Finance Party shall promptly, within three (3) Business
Days,
notify details of the receipt or recovery to the
Agent;
|
| b) |
the
Agent shall determine whether the receipt or recovery is in excess
of the
amount the Recovering Finance Party would have been paid had the
receipt
or recovery been received by or made by the Agent and distributed
in
accordance with Clause 28 (Payment mechanics), without taking account
of
Tax which would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
|
| c) |
the
Recovering Finance Party shall, within three (3) Business Days of
demand
by the Agent, pay to the Agent an amount (the “Sharing
Payment”)
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Finance Party as its
share of
any payment to be made, in accordance with Clause 28.5 (Partly
payments).
|
| 27.2 |
Redistribution
of payments
|
The
Agent
shall treat the Sharing Payment as if it had been paid by the Borrowers and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 28.5 (Partial payments).
| 27.3 |
Recovering
Finance Party’s rights
|
| a) |
On
a distribution by the Agent under Clause 27.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights
of the Finance Parties which have shared in the redistribution.
|
| b) |
If
and to the extent that the Recovering Finance Party is not able to
rely on
its rights under litra a) above, the Borrowers shall be liable to
the
Recovering Finance Party for a debt equal to the Sharing Payment
which is
immediately due and payable.
|
| 27.4 |
Reversal
of redistribution
|
If
any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
| a) |
each
Finance Party which has received a share of the relevant Sharing
Payment
pursuant to Clause 27.2 (Redistribution of payments) shall, upon
request
of the Agent, pay to the Agent for the account of that Recovering
Finance
Party an amount equal to the appropriate part of its share of the
Sharing
Payment (together with an amount as is necessary to reimburse that
Recovering Finance Party for its proportion of any interest on the
Sharing
Payment which that Recovering Finance Party is required to pay);
and
|
| b) |
that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrowers will be liable
to the
reimbursing Finance Party for the amount so
reimbursed.
|
| 27.5 |
Exceptions
|
| a) |
This
Clause 27 shall not apply to the extent that the Recovering Finance
Party
would not, after making any payment pursuant to this Clause, have
a valid
and enforceable claim against the
Borrowers.
|
| b) |
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received
or
recovered as a result of taking legal proceedings,
if:
|
| (i) |
it
notified that other Finance Party of the legal proceedings;
and
|
| (ii) |
that
other Finance Party had an opportunity to participate in those legal
or
arbitration proceedings but did not do so as reasonably practicable
having
received notice and did not take separate legal or arbitration
proceedings.
|
| 28 |
PAYMENT
MECHANICS
|
| 28.1 |
Payments
to the Agent
|
All
payments by the Borrowers or a Lender under the Finance Documents shall be
made:
| a) |
to
the Agent to its account with such office or bank as the Agent may
from
time to time designate in writing to the Borrowers or a Lender for
this
purpose; and
|
| b) |
for
value on the due date at such times and in such funds as the Agent
may
specify to the Party concerned as being customary at the time for
settlement of transactions in the relevant currency in the place
of
payment.
|
| 28.2 |
Distributions
by the Agent
|
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 28.3 (Distributions to the Borrowers) and 28.4
(Clawback), be made available by the Agent as soon as practicable after receipt
to the Party entitled to receive payment in accordance with this Agreement,
to
such account as that Party may notify to the Agent by not less than five (5)
Business Days’ notice.
| 28.3 |
Distributions
to the Borrowers
|
The
Agent
may (with the consent of the Borrowers or in accordance with Clause 29
(Set-off)), apply any amount received by it for the Borrowers in or towards
payment (on the date and in the currency and funds of receipt) of any amount
due
from the Borrowers under the Finance Documents or in or towards purchase of any
amount of currency to be so applied.
| 28.4 |
Clawback
|
| a) |
Where
a sum is to be paid to the Agent under the Finance Documents for
distribution to another Party, the Agent is not obliged to pay that
sum to
that other Party until it has been able to establish to its satisfaction
that it has actually received that sum.
|
| b) |
If
the Agent pays an amount to another Party and it proves to be the
case
that the Agent had not actually received that amount, then the Party
to
whom that amount was paid by the Agent shall on demand refund the
same
amount to the Agent, together with interest on that amount from the
date
of payment to the date of receipt by the Agent, calculated by the
Agent to
reflect its cost of funds.
|
| 28.5 |
Partial
payments
|
If
the
Agent receives a payment that is insufficient to discharge all the amounts
then
due and payable by any of the Borrowers and/or the Guarantor under the Finance
Documents, the Agent shall apply that payment towards the obligations of the
Borrowers and/or the Guarantor under the Finance Documents in the following
order:
| a) |
firstly,
in or towards payment pro rata of any unpaid fees, costs and expenses
of
the Agent under the Finance
Documents;
|
| b) |
secondly,
in or towards payment pro rata of any accrued interest (including
default
interest), fee or commissions due but unpaid under this
Agreement;
|
| c) |
thirdly,
in or towards payment pro rata of any principal due but unpaid under
this
Agreement; and
|
| d) |
fourthly,
in or towards payment pro rata of any other sum due but unpaid under
the
Finance Documents.
|
| 28.6 |
Application
following an Event of
Default
|
On
either
(i) the completion of a sale of a Vessel, either by forced auction or private
treaty, or (ii) the receipt of any monies by the Agent pursuant to the sale
proceeds of a Vessel (as the case may be), such monies shall be applied in
the
following order:
| a) |
firstly,
in respect of all costs and expenses whatsoever incurred in connection
with or about incidental to the said
sale;
|
| b) |
secondly,
in or towards satisfaction of all prior claims (being any claims,
liabilities or debts owed or taking priority in respect of such proceeds
over the Security Interests constituted by the Security Documents)
secured
on the relevant Vessel;
|
| c) |
thirdly,
in or towards payment pro rata of all sums owed to the Finance Parties
under the Finance Documents;
|
| d) |
fourthly,
in or towards payment of all sums owed to the Swap Bank under any
Swap
Agreement(s) at the time of default;
and
|
| e) |
fifthly,
the balance, if any to the Borrowers or to their
order.
|
| 28.7 |
No
set-off by the Borrowers
|
All
payments to be made by the Borrowers under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
| 28.8 |
Payment
on non-Business Days
|
| a) |
Any
payment which is due to be made on a day that is not a Business Day
shall
be made on the next Business Day in the same calendar month (if there
is
one) or the preceding Business Day (if there is not).
|
| b) |
During
any extension of the due date for payment of any principal or Unpaid
Sum
under this Agreement interest is payable on the principal or Unpaid
Sum at
the rate payable on the original due
date.
|
| 28.9 |
Currency
of account
|
The
Borrowers shall pay:
| a) |
any
amount payable under this Agreement, except as otherwise provided
for
herein, in USD; and
|
| b) |
all
payments of Costs and Taxes in the currency in which the same were
incurred.
|
| 29 |
SET-OFF
|
A
Finance
Party may, to the extent permitted by applicable law, set off any matured
obligation due from the Borrowers under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any matured obligations owed
by that Finance Party to the Borrowers, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of
the
set-off.
Each
Borrower hereby agrees and accept that this Clause 29 shall constitute a waiver
of the provisions of Section 29 of the FA Act and further agrees and accepts,
to
the extent permitted by law, that Section 29 of the FA Act shall not apply
to
this Agreement.
| 30 |
NOTICES
|
| 30.1 |
Communication
in writing
|
Any
communication to be made under or in connection with the Finance Documents
shall
be made in writing and, unless otherwise stated, may be made by telefax, e-mail
or letter. Any such notice or communication addressed as provided in Clause
30.2
(Addresses) will be deemed to be given or made as follows:
a) if
by
letter, when delivered at the address of the relevant Party;
b) if
by
telefax or e-mail, when received.
However,
a notice given in accordance with the above but received on a day which is
not a
Business Day or after 16:00 hours in the place of receipt will only be deemed
to
be given at 9:00 hours on the next Business Day in that place.
| 30.2 |
Addresses
|
Any
communication or document to be made under or in connection with the Finance
Documents shall be made or delivered to the address, telefax number or e-mail
address of each Party and marked for the attention of the department or persons
set out below and, in case of any New Lender, to the address notified to the
Agent:
If
to the
Agent: Nordea
Bank Norge ASA
Att:
Shipping, Offshore and Oil Services
Middelthuns
gate 17
P.X.
Xxx
0000 Xxxxxxx
X-0000
Xxxx, Xxxxxx
Telefax
No: x00 00 00 00 00
E-mail:
xxxx.xxxxxxx@xxxxxx.xxx
If
to the
Borrowers: c/o
B + M
Management Ltd.
Par-la-Ville
Place
14
Xxx-xx-Xxxxx Xxxx
Xxxxxxxx
XXXX
Xxxxxxx
Telefax
No: + 1 441 295 6796
E-mail:
xxxxxxxxx@xxxxxxxxxxxx.xx,
xxxxxxx@xxxxxxx.xxx
and
xxxxxxxx@xxxxxxx.xxx
or
any
substitute address and/or telefax number and/or e-mail and/or marked for such
other attention as the Party may notify to the other Agent (or the Agent may
notify the other Parties if a change is made by the Agent) by not less than
five
(5) Business Days’ prior notice.
| 30.3 |
Communication
with the Borrowers
|
All
communication from or to the Borrowers shall be sent through the
Agent.
| 30.4 |
Language
|
Communication
to be given by one Party to another under the Finance Documents shall be given
in the English language or, if not in English and if so required by the Agent,
be accompanied by a certified English translation and, in this case, the English
translation shall prevail unless the document is a statutory or other official
document.
| 31 |
CALCULATIONS
|
All
sums
falling due by way of interest, fees and commissions under the Finance Documents
accrue from day-to-day and shall be calculated on the basis of the actual number
of days elapsed and a calendar year of 360 days and for the actual number of
days elapsed. The calculations made by the Agent of any interest rate or any
amount payable pursuant to this Agreement shall be conclusive and binding upon
the Borrowers in the absence of any manifest error.
| 32 |
MISCELLANEOUS
|
| 32.1 |
Partial
invalidity
|
If,
at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither
the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provisions under any law of any
other jurisdiction will in any way be affected or impaired.
| 32.2 |
Remedies
and waivers
|
No
failure to exercise, nor any delay in exercising on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or remedy.
The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
| 32.3 |
Amendments
and waivers
|
| 32.3.1 |
Required
consents
|
| a) |
Subject
to Clause 32.3.2 (Exceptions), any term of the Finance Documents
may be
amended or waived only with the written consent of the Majority Lenders
and the Borrowers and any such amendment will be binding on all Parties.
|
| b) |
The
Agent may effect, on behalf of any Finance Party, any amendment or
waiver
permitted by this Clause.
|
| 32.3.2 |
Exceptions
|
An
amendment to or waiver that has the effect of changing or which relates
to:
| a) |
the
definition of “Majority Lenders”;
|
| b) |
an
extension of the date of any payment of any amount under the Finance
Documents;
|
| c) |
a
reduction in the Margin or a reduction in the amount of any payment
of
principal, interest, fees or commission
payable;
|
| d) |
an
increase in or extension of any
Commitment;
|
| e) |
a
term of the Finance Documents which expressly requires the consent
of all
the Lenders;
|
| f) |
a
proposed substitution or replacement of any of the Borrowers;
or
|
| g) |
a
change of Clauses 2.2 (Finance Parties’ rights and obligations), 18
(Security), 22.1 (Insurance), 24 (Changes to the Lenders) and this
Clause
32.3,
|
shall
not
be made without the prior written consent of all the Lenders.
An
amendment or waiver which relates to the rights or obligations of the Agent
or
the Arranger may not be effected without the consent of the Agent or the
Arranger.
| 32.4 |
Disclosure
of information and
confidentiality
|
Each
of
the Finance Parties may disclose to each other or to their professional advisers
any kind of information which the Finance Parties have acquired under or in
connection with any Finance Document. The Parties are obliged to keep
confidential all information in respect of the terms and conditions of this
Agreement. This confidentiality obligation shall not apply to any information
which:
| a) |
is
publicised by a Party as required by applicable laws and regulations;
|
| b) |
has
entered the public domain or is publicly known, provided that such
information is not made publicly known by the receiving Party of
such
information; or
|
| c) |
was
or becomes, as the Party is able to demonstrate by supporting documents,
available to the such Party on a non-confidential basis prior to
the
disclosure thereof.
|
| 32.5 |
Conflicting
provisions
|
In
case
of conflict between this Agreement and the terms of any of the Security
Documents, the terms and conditions of this Agreement shall
prevail.
| 33 |
GOVERNING
LAW AND ENFORCEMENT
|
| 33.1 |
Governing
law
|
This
Agreement shall be governed by Norwegian law.
| 33.2 |
Jurisdiction
|
| a) |
For
the benefit of each Finance Party, the Borrowers agree that the courts
of
Oslo, Norway, have jurisdiction to settle any disputes arising out
of or
in connection with the Finance Documents including a dispute regarding
the
existence, validity or termination of this Agreement, and each of
the
Borrowers accordingly submit to the non-exclusive jurisdiction of
the Oslo
District Court (Oslo tingrett).
|
| b) |
Nothing
in this Clause 33.2 shall limit the right of the Finance Parties
to
commence proceedings against any of the Borrowers in any other court
of
competent jurisdiction. To the extent permitted by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
|
| 33.3 |
Service
of process
|
Without
prejudice to any other mode of service, each of the Borrowers:
| a) |
irrevocably
appoints Wikborg Rein & Co., Kronprinsesse Märthas xxxxx 1, X.X. Xxx
0000 Xxxx, X-0000 Xxxx, Xxxxxx as its agent for service of process
in
relation to any proceedings before Norwegian courts in connection
with any
Finance Document; and
|
| b) |
agrees
that failure by its process agent to notify it of the process will
not
invalidate the proceedings
concerned.
|
*
*
*
SCHEDULE
1
ORIGINAL
PARTIES
PART
I: ORIGINAL BORROWERS
|
Name
|
Address
|
Ownership
|
|
OBO
Holdings Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, Xxxxxxxx Xxxxxxx, XX
00000
|
The
Guarantor (100%)
|
|
BHOBO
One Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, Xxxxxxxx Xxxxxxx, XX
00000
|
OBO
Holdings (100%)
|
|
BHOBO
Two Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, Xxxxxxxx Xxxxxxx, XX
00000
|
OBO
Holdings (100%)
|
|
BHOBO
Three Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, Xxxxxxxx Xxxxxxx, XX
00000
|
OBO
Holdings (100%)
|
|
RMJ
OBO Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, Xxxxxxxx Xxxxxxx, XX
00000
|
OBO
Holdings (100%)
|
|
Sagamore
Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, Xxxxxxxx Xxxxxxx, XX
00000
|
XXX
Xxxxxxxx (100%)
|
PART
II: ORIGINAL LENDERS AND COMMITMENTS
|
Lenders:
|
Commitments:
|
|
DVB
Bank America NV
Zeelandia
Office Park
Kaya
X.X.X. Xxxxxxx 00
X.X.
Xxx 0000
Xxxxxxx,
Xxxxxxxxxxx Antilles
|
USD
40,000,000
|
|
The
Governor and Company of the Bank of Scotland
Pentland
House 0
Xxxxxxxx
Xxxxxx
Xxxxxxxxx
Xxxxxxxx
XX00 0XX
|
USD
40,000,000
|
|
HSH
Nordbank AG
Xxxxxxx
Xxxxxxxxx Xxxxx 00
00000
Xxxxxxx
Xxxxxxx
|
USD
40,000,000
|
|
Nordea
Bank Norge ASA
Xxxxxxxxxxxxxx
00
X-0000
Xxxx
Xxxxxx
|
USD
82,000,000
|
|
Total:
|
USD
202,000,000
|
PART
III: ALLOCATED LOAN AMOUNTS
|
Vessel
|
Market
Value
|
Allocated
Loan Amount
|
|
“Rip
Hudner”
|
USD
38,310,000
|
USD
28,725,000
|
|
“Xxxxxx
Xxxxxxxxx”
|
USD
36,300,000
|
USD
27,212,000
|
|
“Searose
G”
|
USD
38,310,000
|
USD
28,725,000
|
|
“Xxxxx
X. Xxxxx”
|
USD
32,500,000
|
USD
24,625,000
|
|
“Sagamore”
|
USD
23,880,000
|
USD
17,713,000
|
SCHEDULE
2
CONDITIONS
PRECEDENT
Part
I
Conditions
Precedent To initial Drawdown
| 1 |
CORPORATE
AUTHORISATION
|
| 1.1 |
In
respect of each
of the Borrowers, the Guarantor, the Charterers and the Charter
Guarantors:
|
| a) |
Certificate
of Incorporation/Certificate of
Registration;
|
| b) |
Memorandum
and Articles of
Association/Bye-laws;
|
| c) |
Resolutions
passed at a board meeting of the relevant Party
evidencing:
|
| (i) |
the
approval of the terms of, and the transactions contemplated by, the
Transaction Documents and the registration the Mortgage (if relevant);
and
|
| (ii) |
the
authorisation of its appropriate officer or officers or other
representatives to execute the Transaction Documents and any other
documents necessary for the transactions contemplated by the Transaction
Documents, on its behalf;
|
| d) |
Power
of Attorney (notarised and legalised);
|
| e) |
Updated
Good Standing Certificate/Certificate of Compliance;
|
| f) |
Secretary’s
Certificate (notarised and legalised);
and
|
| g) |
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph c) above.
|
| 2 |
AUTHORISATIONS
|
All
approvals, authorisations and consents required by any government (domestic
and
foreign) or other authorities for the Borrowers, the Guarantor, the Charterers
and/or the Charter Guarantors to enter into and perform their obligations under
this Agreement and/or any of the Transaction Documents have been obtained and
are in full force and effect and all applicable waiting periods have expired
without any action being taken by any competent authority which, in the
judgement of the Lenders, restraints, prevents or imposes materially adverse
conditions upon the consummation of this Agreement or the transactions referred
to herein.
| 3 |
THE
EXISTING
VESSELS
|
| a) |
The
Charterparty;
|
| b) |
Evidence
(by way of transcript of registry) that the relevant Vessel is, or
will
be, registered in the name of the relevant Borrower in the Bahamas
Ship
Registry (or such other ship registry as approved by the Lenders),
that
the relevant Mortgage has been, or will in connection with the utilisation
of the first Drawdown be, executed and recorded with its intended
first
priority against the relevant Vessel and that no other encumbrances,
maritime liens, mortgages or debts whatsoever are registered against
the
relevant Vessel;
|
| c) |
An
updated class certificate related to the relevant Vessel from the
relevant
classification society, confirming that such Vessel is classed with
the
highest class in accordance with Clause 22.2 (Classification and
repairs),
free of extensions and overdue
recommendations;
|
| d) |
Copies
of confirmations from the insurers (copies of the insurance policies/cover
notes to follow) documenting that insurance cover has been taken
out in
respect of the relevant Vessel in accordance with Clause 22.1 (Insurance),
and evidencing that the Agent’s (on behalf of the Finance Parties and the
Swap Bank) Security Interest in the insurance policies have been
noted in
accordance with the relevant notices as required under the Assignment
Agreement;
|
| e) |
A
report in form and scope acceptable to the Lenders from a firm of
marine
insurance brokers acceptable to the Lenders, with respect to the
insurance
maintained in respect of the Existing Vessels, together with a certificate
from such broker certifying that such
insurances:
|
| (i) |
are
placed with insurance companies and/or underwriters and /or clubs,
in such
amounts, against such risks and in such form, as is acceptable to
the
Lenders; and
|
| (ii) |
conform
with the requirements of Clause 22.1
(Insurances);
|
| f) |
Market
Value evaluations from two (2) Approved Brokers, evidencing that
the total
Market Value of the Existing Vessels at the first Drawdown Date is
equal
to or greater than USD 169,300,000;
|
| g) |
The
relevant Vessel’s current SMC;
|
| h) |
The
Technical Manager’s current DOC;
|
| i) |
The
ISPS Certificate.
|
| 4 |
FINANCE
DOCUMENTS
|
| a) |
The
Agreement;
|
| b) |
The
Assignment Agreement;
|
| c) |
Notice
of Assignment and Acknowledgement in respect of the
Earnings;
|
| d) |
Notice
of Assignment and Acknowledgement in respect of the
Insurances;
|
| e) |
Notice
of Assignment and Acknowledgement in respect of the Charter
Guarantees;
|
| f) |
The
Charterparty Assignments;
|
| g) |
Notice
of Assignment and Acknowledgement in respect of the
Charterparty;
|
| h) |
The
Account Charge;
|
| i) |
The
Mortgages;
|
| j) |
The
Deeds of Covenants; and
|
| k) |
The
Guarantee.
|
| 5 |
TRANSACTION
DOCUMENTS
|
| a) |
The
Charter Guarantees;
|
| b) |
The
Technical Management Agreements;
and
|
| c) |
The
Fee Letter(s).
|
| 6 |
MISCELLANEOUS
|
| a) |
The
Drawdown Notice at least three (3) Business Days prior to the Drawdown
Date;
|
| b) |
Evidence
that the Existing Vessels still employed under the respective
Charterparties and that the respective Charter Guarantee are in full
force
and effect;
|
| c) |
Evidence
that all fees referred to in Clause 11 (Fees), as are payable on
or prior
to the first Drawdown Date, have or will be paid on its due
date;
|
| d) |
A
Compliance Certificate confirming that the Borrowers and the Guarantor
are
in compliance with the financial covenants as set out in Clause 20
(Financial covenants);
|
| e) |
The
effective interest letter.
|
| f) |
Evidence
of capital structure of the Borrowers and the Guarantor satisfactory
to
the Agent;
|
| g) |
Evidence
of release of the Security Interest granted as security under the
Existing
Credit Facility;
|
| h) |
Evidence
that all required registrations and notifications have been made
under the
Security Documents in order to perfect the Security Interest contemplated
thereby, including transcripts from the relevant public registers;
|
| i) |
Appointment
of Wikborg Rein & Co. and the acceptance by Wikborg Rein & Co. as
the Borrowers’ process agent in Norway under the Finance Documents;
|
| j) |
Appointment
of Wikborg Rein & Co. and the acceptance by Wikborg Rein & Co. as
the Guarantor’s process agent in Norway under the Guarantee;
and
|
| k) |
Any
other documents as reasonably requested by the
Agent.
|
| 7 |
LEGAL
OPINIONS
|
| a) |
A
legal opinion from Thommessen Xxxxxxxx Xxxxx Xxxx AS related to Norwegian
law issues;
|
| b) |
A
legal opinion from Xxxxx & Xxxxxxx related to Bahamas law
issues;
|
| c) |
A
legal opinion from Xxxxxx & Xxxxxx LLP related to Xxxxxxxx Island law
issues;
|
| d) |
A
legal opinion from Xxxxxx & Xxxxxx LLP related to Liberian law
issues;
|
| e) |
A
legal opinion from Prettys related to English law issues;
and
|
| f) |
Any
such other favourable legal opinions in form and substance satisfactory
to
the Agent from lawyers appointed by the Agent on matters concerning
all
relevant jurisdictions.
|
Part
II
Conditions
Precedent Required to be
Delivered
by an Additional Borrower and/or in respect of a New Vessel
| 1 |
CORPORATE
AUTHORISATION
|
| 1.1 |
In
respect of the Additional
Borrower:
|
| a) |
Certificate
of Incorporation/Certificate of
Registration;
|
| b) |
Memorandum
and Articles of
Association/Bye-laws;
|
| c) |
Resolutions
passed at a board meeting of the relevant Additional Borrower
evidencing:
|
| (i) |
the
approval of the terms of, and the transactions contemplated by, the
Transaction Documents and the registration the Mortgage (if relevant);
and
|
| (ii) |
the
authorisation of its appropriate officer or officers or other
representatives to execute the Transaction Documents and any other
documents necessary for the transactions contemplated by the Transaction
Documents, on its behalf;
|
| d) |
Power
of Attorney (notarised and legalised);
|
| e) |
Updated
Good Standing Certificate/Certificate of Compliance;
|
| f) |
Secretary’s
Certificate (notarised and legalised);
and
|
| g) |
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph c) above.
|
| 1.2 |
In
respect of the Sellers:
|
| a) |
Corporate
resolutions to the sale and delivery of the relevant New Vessel;
and
|
| b) |
Power
of Attorney.
|
| 2 |
AUTHORISATIONS
|
All
approvals, authorisations and consents required by any government or other
authorities for the Additional Borrower, the relevant Charterers and/or the
relevant Charter Guarantors to enter into and perform their obligations under
this Agreement and/or any of the Transaction Documents.
| 3 |
THE
NEW VESSELS
|
| a) |
The
MoA;
|
| b) |
The
Protocol of Delivery and Acceptance under the
MoA;
|
| c) |
The
Xxxx of Sale;
|
| d) |
The
Charterparty;
|
| e) |
The
Protocol of Delivery and Acceptance under the
Charterparty;
|
| f) |
Evidence
(by way of transcript of registry) that the relevant New Vessel is,
or
will be, registered in the name of the relevant Additional Borrower
in the
Bahamas Ship Registry (or such other ship registry as approved by
the
Lenders), that the relevant Mortgage has been, or will in connection
with
the utilisation of the relevant Drawdown be, executed and recorded
with
its intended first priority against the relevant New Vessel and that
no
other encumbrances, maritime liens, mortgages or debts whatsoever
are
registered against the relevant New
Vessel;
|
| g) |
An
updated class certificate related to the relevant New Vessel from
the
relevant classification society, confirming that such Vessel is classed
with the highest class in accordance with Clause 22.2 (Classification
and
repairs), free of extensions and overdue
recommendations;
|
| h) |
Copies
of confirmations from the insurers (copies of the insurance policies/cover
notes to follow) documenting that insurance cover has been taken
out in
respect of the relevant Vessel in accordance with Clause 22.1 (Insurance),
and evidencing that the Agent’s (on behalf of the Finance Parties and the
Swap Bank) Security Interest in the insurance policies have been
noted in
accordance with the relevant notices as required under the Assignment
Agreement;
|
| i) |
A
report in form and scope acceptable to the Lenders from a firm of
marine
insurance brokers acceptable to the Lenders, with respect to the
insurance
maintained in respect of the relevant New Vessel, together with a
certificate from such broker certifying that such
insurances:
|
| (i) |
are
placed with insurance companies and/or underwriters and /or clubs,
in such
amounts, against such risks and in such form, as is acceptable to
the
Lenders; and
|
| (ii) |
conform
with the requirements of Clause 22.1
(Insurances);
|
| j) |
The
relevant New Vessel’s current SMC;
|
| k) |
The
ISPS Certificate; and
|
| l) |
Deletion
Certificate from the current ship registry (if
applicable).
|
| 4 |
FINANCE
DOCUMENTS
|
| a) |
The
Assignment Agreement (or an amendment
thereto);
|
| b) |
Notice
of Assignment and Acknowledgement in respect of the
Earnings;
|
| c) |
Notice
of Assignment and Acknowledgement in respect of the
Insurances;
|
| d) |
Notice
of Assignment and Acknowledgement in respect of the Charter
Guarantees;
|
| e) |
The
Charterparty Assignment (or an amendment
thereto);
|
| f) |
Notice
of Assignment and Acknowledgement in respect of the
Charterparty;
|
| g) |
The
Account Charge;
|
| h) |
The
Mortgage;
|
| i) |
The
Deed of Covenants; and
|
| j) |
An
Accession Letter, duly executed by the Additional Borrower and OBO
Holdings Ltd.
|
| 5 |
TRANSACTION
DOCUMENTS
|
| a) |
The
Charter Guarantee; and
|
| b) |
The
Technical Management Agreement.
|
| 6 |
MISCELLANEOUS
|
| a) |
The
Drawdown Notice at least three (3) Business Days prior to the relevant
Drawdown Date;
|
| b) |
Evidence
that all fees referred to in Clause 11 (Fees), as are payable on
or prior
to the relevant Drawdown Date, have or will be paid on its due
date;
|
| c) |
A
Compliance Certificate confirming that the Borrowers and the Guarantor
are
in compliance with the financial covenants as set out in Clause 20
(Financial covenants);
|
| d) |
Evidence
of the Market Value of such New Vessel, issued no later than two
(2)
months prior to the proposed Drawdown
Date;
|
| e) |
Appointment
of Wikborg Rein & Co. and the acceptance by Wikborg Rein & Co. as
the Additional Borrower’s process agent in Norway under the Finance
Documents; and
|
| f) |
Any
other documents as reasonably requested by the
Agent.
|
| 7 |
LEGAL
OPINIONS
|
| a) |
A
legal opinion from Xxxxx & Xxxxxxx related to Bahamas law
issues;
|
| b) |
A
legal opinion from Xxxxxx & Xxxxxx LLP related to Xxxxxxxx Island law
issues;
|
| c) |
A
legal opinion from Prettys related to English law issues;
and
|
| d) |
Any
such other favourable legal opinions in form and substance satisfactory
to
the Agent from lawyers appointed by the Agent on matters concerning
all
relevant jurisdictions.
|
SCHEDULE
3
FORM
OF DRAWDOWN NOTICE
To: Nordea
Bank Norge ASA, as Agent
From: [·]
Date: [•]
USD
202,000,000 REDUCING REVOLVING CREDIT FACILITY AGREEMENT DATED 29 AUGUST 2006
(THE “AGREEMENT”)
We
refer
to Clause 5.1 (Delivery of a Drawdown Notice) of the Agreement. Terms defined
in
the Agreement shall have the same meaning when used in this Drawdown
Notice.
| a) |
You
are hereby irrevocably notified that we wish to make the following
drawdown of a Drawdown under:
|
Drawdown
Date: [
]
Principal
Amount: [ ]
Interest
Period: [ ]
| b) |
The
proceeds of the Loan shall be credited to [•] [insert
name and number of account].
|
| c) |
We
confirm that, as of the date hereof (i) each condition specified
in Clause
4 (Conditions Precedent) of the Agreement is satisfied; (ii) each
of the
representations and warranties set out in Clause 18 (Representations
and
warranties) of the Agreement is true and correct; and (iii) no event
or
circumstances has occurred and is continuing which constitute or
may
constitute an Event of Default.
|
Yours
sincerely
for
and
on behalf of
[·]
By:
__________________________________
Name:
Title:
[authorised officer]
SCHEDULE
4
FORM
OF COMPLIANCE CERTIFICATE
To: Nordea
Bank Norge ASA, as Agent
From: [·]
Date: [•]
[To
be
delivered no later than [one hundred and twenty (120) /forty-five (45)] days
after each Reporting Date]
USD
202,000,000 REDUCING REVOLVING CREDIT FACILITY AGREEMENT DATED 29 AUGUST 2006
(THE “AGREEMENT”)
We
refer
to the Agreement. Terms defined in the Agreement shall have the same meaning
when used in this Compliance Certificate.
With
reference to Clauses 19.1 (Compliance certificate) and 20 (Financial covenants)
of the Agreement, we confirm that as at [•] [insert relevant Reporting
Date]:
| a) |
Minimum
Value Adjusted Equity Ratio.
The Minimum Value Adjusted Equity Ratio of the Guarantor (on a
consolidated basis) was [•].
|
The
Guarantor shall at all times maintain a minimum Value Adjusted Equity Ratio
of
thirty per cent (30.00%). The covenant in Clause 20.2.1 (Minimum Value Adjusted
Equity Ratio) is thus [not] satisfied.
| b) |
Minimum
Value Adjusted Equity Ratio.
The Minimum Value Adjusted Equity of the Guarantor (on a consolidated
basis) was USD [•].
|
The
Guarantor shall at all times maintain a Minimum Value Adjusted Equity of USD
50,000,000. The covenant set out in Clause 20.2.2 (Minimum cash balance) is
thus
[not] satisfied.
| c) |
Ratio
EBITDA to Fixed Charges.
The ratio of EBITDA to Fixed Charges of the Guarantor (on a consolidated
basis) was [•].
|
The
Guarantor (on a consolidated basis) shall at all times ensure that ratio of
EBITDA to Fixed Charges 1.125:1.00 or greater on a twelve (12) months rolling
basis up until the Final Maturity Date. The covenant in Clause 20.2.3 (Ratio
EBITDA to Fixed Charges) is thus [not] satisfied.
| d) |
Positive
working capital. The
working capital of the the Guarantor (on a consolidated basis) was
[·].
|
The
Guarantor (on a consolidated basis) shall at all times ensure that its current
assets exceeds its current liabilities (excluding the current portion of long
term debt), all as determined in accordance with GAAP. The covenant set out
in
Clause 20.2.4 (Positive working capital) is thus [not] satisfied.
| e) |
[Minimum
value.
The Market Value of the Vessels pursuant to the attached survey is
[•].
|
The
Borrowers shall ensure that the Market Value of the Vessels shall be at least
one hundred and twenty per cent (120.00%) of the Loans from the earlier of
(i)
the expiry of the Charterparty for MV “Xxxxx X. Xxxxx” and (ii) 30 September
2008, The covenant in Clause 20.2.4 (minimum value) is thus [not]
satisfied.]
| f) |
Cash
and Cash Equivalents. The
Cash and Cash Equivalent of the Guarantor (on a consolidated basis)
is
[·].
|
The
Guarantor (on a consolidated basis) shall at all times ensure that it has Cash
and Cash Equivalents equal to or greater than (i) USD 15,000,000 and (ii) six
per cent (6.00%) of the long term debt of the Guarantor.
| g) |
Insurance.
We
confirm that each of the Vessels is insured against such risks and
in such
amounts as set out in Appendix 1 hereto.
|
| h) |
We
confirm that, as of the date hereof (i) each of the representations
and
warranties set out in Clause 18 (Representations and warranties)
of the
Agreement is true and correct; and (ii) no event or circumstances
has
occurred and is continuing which constitute or may constitute an
Event of
Default.
|
Yours
sincerely
for
and
on behalf of
[·]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
1
|
Name
of Vessel
|
Hull
& Machinery
|
Increased
Value
|
Loss
of Hire
|
Protection
& Indemnity
|
War
Risk
|
|||||
|
M/V
“-Rip Hudner ”
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
MV
“Xxxxxx
Xxxxx-
xxxx”
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
MV
“Searose G”
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
MV
“Xxxxx X. Xxxxx”
|
||||||||||
|
MT
“Saga-more”
|
||||||||||
SCHEDULE
5
FORM
OF TRANSFER CERTIFICATE
To: Nordea
Bank Norge ASA, as Agent
From: [•]
(the
”Existing
Lender”
and
[•]
(the ”New
Lender”)
Date: [•]
USD
202,000,000 REDUCING REVOLVING CREDIT FACILITY AGREEMENT DATED 29 AUGUST 2006
(THE “AGREEMENT”)
We
refer
to the Agreement. Terms defined in the Agreement have the same meaning in this
Transfer Certificate unless given a different meaning in this Transfer
Certificate.
With
reference to Clause 24 (Changes to the Lenders):
| a) |
The
Existing Lender, in its capacity as Lender under the Agreement, confirms
that it participates with []
per cent of the Total Commitments.
|
| b) |
The
Existing Lender hereby transfers to the New Lender []
per cent of the Total Commitments as specified in the Schedule hereto,
and
of the equivalent rights and interest in all Finance Documents, and
the
New Lender hereby accepts such transfer from the Existing Lender
in
accordance with the terms set out herein and Clause 24 (Changes to
the
Lenders) of the Agreement and assumes the same obligations to the
other
Finance Parties as it would have been under if it was an original
Lender.
|
| c) |
The
proposed Transfer Date is [],
as from which date the Transfer of such portion of the Total Commitments
shall take full legal effect.
|
| d) |
The
New Lender confirms that it has received a copy of the Agreement,
together
with such other information as it has required in connection with
this
transaction. The New Lender expressly acknowledges and agrees to
the
limitations on the Existing Lender’s responsibility set out in Clause 24.2
(Limitations of responsibility of Existing Lenders) of the
Agreement.
|
| e) |
The
New Lender hereby undertakes to the Existing Lender and the Borrowers
that
it will perform in accordance with the terms and conditions of the
Agreement all those obligations which will be assumed by it upon
execution
of this Transfer Certificate.
|
| f) |
The
address, telefax number and attention details for notices, as well
as the
account details of the New Lender, are set out in the Schedule.
|
| g) |
This
Transfer Certificate is governed by Norwegian law, with Oslo City
Court
(Oslo
tingrett)
as legal venue.
|
The
Schedule
Commitments/rights
and obligations to be transferred
|
I
|
Existing
Lender:
|
[
]
|
|
II
|
New
Lender:
|
[
]
|
|
III
|
Total
Commitments of Existing Lender:
|
USD
[ ]
|
|
IV
|
Aggregate
amount transferred:
|
USD
[ ]
|
|
V
|
Total
Commitments of New Lender:
|
USD
[ ]
|
|
VI
|
Transfer
Date:
|
[
]
|
Administrative
Details / Payment Instructions of New Lender
Notices
to New Lender:
[
]
[
]
Att: [
]
Telefax
no: +
[
]
[Insert
relevant office address, telefax number and attention details for notices and
payments to the New Lender.]
Account
details of New Lender: [Insert relevant account details of the New
Lender.]
Existing
Lender: New
Lender:
[•] [•]
By:
__________________________________ By:
________________________________
Name: Name:
Title: Title:
This
Transfer Certificate is accepted and agreed by the Agent and the Borrowers
and
the Transfer Date is confirmed as [ ].
Agent: Borrowers:
Nordea
Bank Norge ASA [ ]
By:
__________________________________ By:
________________________________
Name: Name:
Title: Title:
SCHEDULE
6
FORM
OF ACCESSION LETTER
To: Nordea
Bank Norge ASA, as Agent
From: [·]
Date: [·]
USD
202,000,000 REDUCING REVOLVING CREDIT FACILITY AGREEMENT DATED 29 AUGUST 2006
(THE “AGREEMENT”)
| 1 |
We
refer to the Agreement. This is an Accession Letter. Terms defined
in the
Agreement have the same meaning in this Accession Letter unless given
a
different meaning in this Accession
Letter.
|
| 2 |
[Name
of Subsidiary]
agrees to become an Additional Borrower and to be bound by the terms
of
the Agreement as an Additional Borrower pursuant to Clause 25.2
(Additional Borrowers) of the Agreement. [Name
of Subsidiary]
is a company duly incorporated under the laws of [name
of relevant jurisdiction].
|
| 3 |
[Name
of Subsidiary]’s
administrative details are as
follows:
|
Address:
Fax
No:
Attention:
| 4 |
This
Accession Letter is governed by Norwegian
law.
|
OBO
Holdings Ltd. [Name
of Subsidiary]
By:
__________________________ By:
_____________________
Name: Name:
Title: Title:
SCHEDULE
7
SCHEDULED
REDUCTIONS
|
Reduction
No.
|
Today
|
1
*)
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
||
|
($1000)
|
|
jun.
06
|
sep.
06
|
des.
06
|
mar.
07
|
jun.
07
|
sep.
07
|
des.
07
|
mar.
08
|
jun.
08
|
sep.
08
|
des.
08
|
mar.
09
|
|
Principal
|
84
662
|
84
662
|
81
362
|
78
062
|
74
762
|
71
462
|
68
162
|
64
862
|
61
562
|
58
262
|
54
962
|
51
662
|
|
|
Existing
Vessels
|
|||||||||||||
|
M/V
“Rip Hudner”
|
Reductions
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
||
|
M/V
“Xxxxxx Xxxxxxxxx”
|
Reductions
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
||
|
M/V
“Searose G”
|
Reductions
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
||
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
||||
|
M/V
”Xxxxx X. Xxxxx”
|
Principal
|
24
625
|
24
625
|
23
425
|
22
225
|
21
025
|
19
825
|
18
625
|
17
425
|
16
225
|
15
025
|
13
825
|
12
625
|
|
Reductions
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
|||
|
M/V
“Sagamore”
|
Principal
|
17
713
|
17
713
|
16
763
|
15
813
|
14
863
|
13
913
|
12
963
|
12
013
|
11
063
|
10
113
|
9
163
|
8
213
|
|
Reductions
|
950
|
950
|
950
|
950
|
950
|
950
|
950
|
950
|
950
|
950
|
|||
|
New
Vessel
|
|||||||||||||
|
M/V
“Sibohelle” (tbr “Sakonnet”) **)
|
Principal
|
27
000
|
25
750
|
24
500
|
23
250
|
22
000
|
20
750
|
19
500
|
18
250
|
17
000
|
15
750
|
||
|
Reductions
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
||||
|
127
000
|
127
000
|
||||||||||||
|
Reduction
No.
|
11
|
12
|
13
|
14
|
15
|
16
|
17
|
18
|
19
|
20
|
21
|
||
|
($1000)
|
|
|
jun.
09
|
sep.
09
|
des.
09
|
mar.
10
|
jun.
10
|
sep.
10
|
des.
10
|
mar.
11
|
jun.
11
|
sep.
11
|
des.
11
|
|
Principal
|
48
362
|
45
062
|
41
762
|
38
462
|
35
162
|
31
862
|
28
562
|
25
262
|
21
962
|
18
662
|
15
362
|
||
|
Existing
Vessels
|
|||||||||||||
|
M/V
“Rip Hudner”
|
Reductions
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
|
|
M/V
“Xxxxxx Xxxxxxxxx”
|
Reductions
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
|
|
M/V
“Searose G”
|
Reductions
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
1
100
|
|
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
3
300
|
|||
|
M/V
”Xxxxx X. Xxxxx”
|
Principal
|
11
425
|
10
225
|
9
025
|
7
825
|
6
625
|
5
425
|
4
225
|
3
025
|
1
825
|
625
|
-
|
|
|
Reductions
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
1
200
|
625
|
||
|
M/V
“Sagamore”
|
Principal
|
7
613
|
7
013
|
6
413
|
5
813
|
5
213
|
4
613
|
4
013
|
3
413
|
2
813
|
2
213
|
1
613
|
|
|
Reductions
|
600
|
600
|
600
|
600
|
600
|
600
|
600
|
600
|
600
|
600
|
600
|
||
|
New
Vessel
|
|||||||||||||
|
M/V
“Sibohelle” (tbr “Sakonnet”) **)
|
Principal
|
14
500
|
13
250
|
12
000
|
10
750
|
9
500
|
8
250
|
7
000
|
5
750
|
4
500
|
3
250
|
2
000
|
|
|
Reductions
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
1
250
|
*) The
first
reduction to be made three (3) months after the first Drawdown Date
**)
If
the Allocated Loan Amount for MV “Sibohelle” (tbr “Sakonnet”) shall be less than
USD 27,000,000, the scheduled reductions set out in this Schedule 7 shall be
reduced accordingly on a pro rata basis.
SCHEDULE
8
FORM
OF ASSIGNMENT AGREEMENT
THIS
ASSIGNMENT AGREEMENT (the
“Assignment
Agreement”)
is
made on [·]
August
2006 between:
(1) OBO
Holdings Ltd., of
Trust
Company Complex, Ajeltake Island, Xxxxxxxx Xxxxxxx, XX0000;
BHOBO
One Ltd.
of Trust
Company Complex, Ajeltake Island, Xxxxxxxx Xxxxxxx, XX00000;
BHOBO
Two Ltd. of
Trust
Company Complex, Ajeltake Island, Xxxxxxxx Xxxxxxx, XX00000;
BHOBO
Three Ltd.
of Trust
Company Complex, Ajeltake Island, Xxxxxxxx Xxxxxxx, XX00000;
RMJ
OBO SHIPPING LTD.
of Trust
Company Complex, Ajeltake Island, Xxxxxxxx Islands MH96960; and
SAGAMORE
SHIPPING LTD.
of Trust
Company Complex, Ajeltake Island, Xxxxxxxx Islands MH96960,
as
joint
and several borrowers (the “Borrowers”);
and
(2) Nordea
Bank Norge ASA of
Xxxxxxxxxxxxxxx 00, X-0000 Xxxx, Xxxxxx, organisation number 911 044 110 as
agent on behalf of the Finance Parties and the Swap Bank (as defined in the
Agreement as referred to below) (the “Agent”).
Background:
(A) Pursuant
to the terms and conditions of a reducing revolving credit facility agreement
dated 29 August 2006 (the “Agreement”)
between i.a. the Borrowers as joint and several borrowers, the banks and
financial institutions listed in part II of schedule 1 thereto as lenders (the
“Lenders”),
Nordea Bank Finland Plc., as swap bank (the “Swap
Bank”)
and
Nordea Bank Norge ASA as agent for the Lenders (the “Agent”)
and
mandated lead arranger (the “Arranger”),
the
Lenders have agreed to make available to the Borrowers a reducing revolving
credit facility in the aggregate amount of USD 202,000,000 (the “Loans”);
and
(B) it
is a
condition precedent to the Lenders making the Loans available to the Borrowers
that the Borrowers execute and deliver, inter alia, this Assignment Agreement
and grant the Security Interests set out herein as security for their
obligations towards (i) the Finance Parties under the Agreement and (ii) the
Swap Bank under any Swap Agreement(s).
NOW
THEREFORE:
| 1 |
INTERPRETATION
|
| 1.1 |
Definitions
|
In
this
Assignment Agreement, including the preamble hereto (unless the context
otherwise requires), any term or expression defined in the preamble shall have
the meanings ascribed to it therein. In addition, terms and expressions not
defined herein but whose meanings are defined in the Agreement shall have the
meanings set out therein.
| 1.2 |
Construction
|
In
this
Assignment Agreement, unless the context otherwise requires:
| a) |
reference
to Clauses or Appendices are to be construed as references to clauses
or
appendices of this Assignment Agreement unless otherwise
stated;
|
| b) |
references
to (or to any specified provision of) this Assignment Agreement or
any
other document shall be construed as references to this Assignment
Agreement, that provision or that document as from time to time amended;
and
|
| c) |
words
importing the plural shall include the singular and vice
versa.
|
| 2 |
ASSIGNMENT
OF EARNINGS, INSURANCES
AND CHARTER GUARANTEES
|
| 2.1 |
Assignment
|
To
secure
the payment and the discharge of the Borrowers’ obligations under the Agreement
and any Swap Agreement and the payment of all sums which from time to time
may
become due thereunder, and to secure the performance and observance of and
compliance with all the covenants, terms and conditions contained in the
Agreement and any Swap Agreement, the Borrowers hereby assign to the Agent
(on
behalf of the Finance Parties and the Swap Bank) on first priority:
| a) |
the
Earnings;
|
| b) |
the
Insurances, and
|
| c) |
any
and all rights to receive any monies under the Charter Guarantees
(the
“Charter
Guarantees”).
|
| 2.2 |
Notice
and acknowledgement, etc.
|
| a) |
The
Borrowers undertake promptly to give notice of the assignment of
the
Earnings to the Charterers and any other third party from which any
of the
Earnings or amounts may become payable in the form set out in Appendix
1(A)
hereto and procure that any recipient of such notice acknowledges
receipt
of the notice as set out therein in the form of Appendix
1(B)
hereto.
|
| b) |
The
Borrowers undertake to insure and keep the Vessels fully insured
in
accordance with Clause 22.1 (Insurance) of the Agreement;
and
|
| (i) |
in
the event that the Insurances, or any one of them, have been taken
out on
conditions other than the Norwegian Marine Insurance Plan of 1996,
version
2003 (as amended from time to time) (the “Plan”),
to give all the relevant insurers notice in the form of Appendix
2 (A)
hereto, and procure that the said insurers acknowledge receipt of
such
notice in the form of Appendix
2 (B)
hereto or give such other form of notice and procure such other form
of
acknowledgement as the Agent shall require in writing to the Borrowers;
and
|
| (ii) |
in
the event that the Insurances, or any one of them, have been taken
out
according to the Plan, to procure written statements from all the
relevant
insurers and/or approved brokers confirming that the Agent (on behalf
of
the Finance Parties and the Swap Bank) has been duly registered as
co-insured first priority mortgagee on all such insurance policies
taken
out for the Vessels and that notice according to the Plan has been
duly
received by all the relevant
insurers.
|
| c) |
The
Borrowers undertake promptly to give notice of the assignment of
the
Charter Guarantees to the Charter Guarantors in the form set out
in
Appendix
3 (A)
hereto and procure that the Charter Guarantor acknowledged receipt
of the
notice as set out in therein in the form of Appendix
3 (B)
hereto.
|
| 2.3 |
Loss
Payable
|
Claims
related to the Insurances in respect of an actual or constructive or agreed
or
arranged or compromised total loss or requisition for title or other compulsory
acquisition of any of the Vessels and claims payable in respect of a major
casualty, that is to say any claim (or the aggregate of which) exceeding USD
500,000, shall be payable to the Agent. Subject thereto all other claims, unless
and until the insurers have received notice from the Agent of an Event of
Default which is unremedied under the Agreement in which event all claims shall
be payable directly to the Agent up to the Lenders’ and the Swap Bank’s mortgage
interest, shall be released directly for the repair, salvage or other charges
involved or to the Borrowers as reimbursement if it has fully repaired the
damage and paid all of the salvage or other charges or otherwise in respect
of
Borrowers’ actual costs in connection with repair, salvage and/or other charges.
Any amounts paid to any of the Borrowers directly shall be paid to the Earnings
Account.
| 3 |
PLEDGE
OF ACCOUNTS
|
| 3.1 |
Pledge
|
The
Borrowers have opened the account as listed in Appendix 4 hereto (the
“Pledged
Accounts”).
To
secure
payment and discharge of the Borrowers’ obligations under the Agreement and any
Swap Agreement and to secure the performance and observance of and compliance
with all of the covenants, terms and conditions contained in the Agreement
and
any Swap Agreement, the Borrowers hereby pledge to the Agent (on behalf of
the
Finance Parties and the Swap Bank) on first priority, the Pledged Accounts
or
such other account or accounts as may be agreed from time to time between the
Agent and the Borrowers and any and all amounts deposited into and standing
to
the credit of any of the Pledged Accounts or such other account and accounts
from time to time.
The
Agent
confirms, in its capacity as account holder and debtor of the Pledged Accounts,
that the pledge of the Pledged Accounts is duly noted in its
records.
| 3.2 |
Drawings
|
The
Borrowers may draw funds from the Pledged Accounts as long as no Default has
been declared by the Agent.
| 3.3 |
Blocking
upon Event of Default
|
The
Pledged Accounts shall, following an Event of Default, be blocked in favour
of
the Finance Parties, and any subsequent monies paid to any of the Pledged
Accounts or paid directly to the Agent shall be applied towards the Borrowers’
obligations to the Lenders or the Swap Bank (as the case may be) under the
Agreement and/or any Swap Agreement, respectively, with any balance to be
promptly released.
| 4 |
MAXIMUM
LIABILITY
|
The
liability of each Borrower hereunder shall be limited to USD 215,000,000, plus
any unpaid amount of interest, fees, liability and expenses under the Finance
Documents and the Swap Agreement(s).
| 5 |
WAIVER
OF RIGHTS
|
Each
Borrower specifically waives all rights under the provisions of the Norwegian
Financial Agreements Act 1999 (as amended) not being mandatory
provisions.
| 6 |
PERFECTION
|
The
Borrowers agree that at any time and from time to time upon the written request
of the Agent, they will promptly and duly execute and deliver to the Agent
any
and all such further instruments and documents as the Agent (on behalf of the
Finance Parties and the Swap Bank) may reasonably deem necessary or desirable
to
register this Assignment Agreement in any applicable registry, and to maintain
and/or perfect the Security Interest created by this Assignment Agreement and
the rights and powers herein granted.
| 7 |
ENFORCEMENT
|
Upon
the
occurrence of an Event of Default, the Agent is, to the extent possible and
permitted under Norwegian law, entitled to:
| a) |
immediately
sell, dispose, collect, transfer ownership to all or any of the claims
pledged in favour of the Agent (on behalf of the Finance Parties
and the
Swap Bank) under this Assignment Agreement (the “Claims”),
as provided for in the Financial Securities Act;
and
|
| b) |
apply
any and all proceeds from the Claims in satisfaction of all amounts
owing
to the Finance Parties in accordance with the Agreement and to the
Swap
bank in accordance with the relevant Swap Agreement, and keep and
hold any
surplus as security for any amount owing (actual or contingent) in
accordance with the Agreement but not yet due.
|
| 8 |
ASSIGNMENT
|
The
Agent
may assign or transfer its rights hereunder to any person to whom the rights
and
obligations of the Agent and the Lenders under the Agreement are wholly or
partially assigned in accordance with Clause 24 (Changes to the Lenders) of
the
Agreement.
| 9 |
NO
FURTHER ASSIGNMENT OR
PLEDGE
|
The
Borrowers shall not, unless prior written consent has been obtained from the
Agent, be entitled to further assign or pledge the Earnings, the Insurances,
the
Charter Guarantees and/or the Pledged Accounts.
| 10 |
ADDITIONAL
AND CONTINUING SECURITY
|
The
Security Interest contemplated by this Assignment Agreement shall be in addition
to any other Security Interest granted in accordance with the Agreement and/or
any Swap Agreement, and shall be a continuing security in full force and effect
as long as any obligations are outstanding under the Agreement or any Swap
Agreement (as the case may be).
| 11 |
MISCELLANEOUS
|
| a) |
Each
of the Borrowers hereby specifically agrees and accepts that the
nature of
their liability hereunder being joint and several shall not be affected
by
any reason or circumstances of legal or factual nature, including,
but not
limited to:
|
| (i) |
any
waiver granted to the other Borrowers, the Guarantor or any other
third
party;
|
| (ii) |
any
failure to enforce any rights, remedy or security against any of
the other
Borrowers, the Guarantor or any other third
party;
|
| (iii) |
any
legal limitation, incapacity or other circumstances relating to any
of the
other Borrowers, the Guarantor or any other third
party;
|
| (iv) |
the
liquidation, bankruptcy, insolvency or dissolution or the appointment
of
receiver for any of the other Borrowers, the Guarantor or any other
third
party; or
|
| (v) |
the
Agreement or any of the Finance Documents becoming invalid or
unenforceable against any of the other Borrowers and/or the Guarantor.
|
| b) |
Each
of the Borrowers specifically waives all rights under the provisions
of
the FA Act not being mandatory provisions, including (but not limited
to)
the relevant provisions of §§ 62, 63, 65, 66, 67, 70, 71, 72, 73 and 74.
|
| c) |
Each
of the Borrowers acknowledges and agrees that it has full knowledge
of the
cross-default provision in the Agreement, and of the security which
is to
be granted in respect of the amounts outstanding under the Agreement
and
as listed in Clause 17 (Security) of the
Agreement.
|
| 12 |
NOTICES
|
Any
notice, demand or other communication to be made or delivered by any party
pursuant to this Assignment Agreement shall (unless the addressee has by five
(5) Business Days’ written notice to that party specified another address) be
made or delivered as set out in Clause 30 (Notices) of the
Agreement.
| 13 |
GOVERNING
LAW - JURISDICTION
|
This
Assignment Agreement shall be governed by and construed in accordance with
the
laws of Norway.
The
Borrowers and the Finance Parties accept Oslo City Court (Oslo
tingrett)
as
non-exclusive venue, but this choice shall not prevent the Agent (on behalf
of
the Finance Parties) to enforce any of the Finance Documents against any of
the
Vessels or other assets of any of the Borrowers wherever they may be
found.
Borrowers: Agent:
OBO
Holdings Ltd. Nordea
Bank Norge ASA
By:
____________________________ By:______________________________
Name: Name:
Title: Title:
BHOBO
One
Ltd.
By:
____________________________
Name:
Title:
BHOBO
Two
Ltd.
By:
___________________________
Name:
Title:
BHOBO
Three Ltd.
By:
___________________________
Name:
Title:
RMJ
OBO
Shipping Ltd.
By:
___________________________
Name:
Title:
Sagamore
Shipping Ltd.
By:
___________________________
Name:
Title:
Appendix
1 (A)
FORM
OF NOTICE OF ASSIGNMENT
(Assignment
of Earnings)
To: [ ]
M/V
“[ ]”
We
refer
to the time charter party dated [•], (the “Charterparty”)
made
between you and us, whereby we agreed to let and you agreed to take on time
charter for the period and upon the terms and conditions therein mentioned
M/V
“[ ]”
(the
“Vessel”).
We
hereby
give you notice that:
| a) |
by
an agreement dated 29 August 2006 (the “Assignment
Agreement”)
made between among others us and Nordea Bank Norge ASA, Middelthunsgt.
17,
N-0368 Oslo, Norway, acting as agent on behalf of certain other banks
and
swap bank (the “Agent”),
related to a loan agreement of even date (the “Agreement”)
and any Swap Agreement (as defined in the Agreement) made or to be
entered
into with the Swap Bank (as defined in the Agreement), we have assigned
absolutely and have agreed to assign absolutely to and in favour
of the
Agent all our rights, title and interest, present and future, to
all
payments to be made to us under the Charterparty, including in respect
of
any breach by you thereunder; and
|
| b) |
you
are herby irrevocably authorised and instructed to make all payments
under
the Charterparty to our account with Nordea Bank Finland Plc., London
Branch account no [•]until such time as the Agent shall direct to the
contrary whereupon all instructions or demands for actions shall
be made
by the Agent and payments are due to the Agent or as it may
direct.
|
The
authority and instructions herein contained cannot be revoked or varied by
us
without the written consent of the Agent.
[Place
and date:] [•], [•]
Yours
sincerely
for
and
on behalf of
[ ]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
1 (B)
FORM
OF ACKNOWLEDGEMENT
(Assignment
of Earnings)
To: Nordea
Bank Norge ASA
Xxxxxxxxxxxxxxx
00
X-0000
Xxxx
Xxxxxx
Attn:
Shipping, Offshore and Oil Services
MV
“[·]”
We
acknowledge receipt of the above Notice of Assignment dated [•] August 2006 from
[ ].
Terms
used herein shall have the same meaning as defined therein.
We
agree
to the assignment set out therein.We confirm that we have received no notice
of
any previous assignment or pledge of all or any part of the charter hire and
any
monies payable thereunder.
We
confirm that, until otherwise notified by you, we will make all payments due
under the Charterparty, subject to all permitted set-offs and deductions
thereunder, to the account specified in the said Notice of Assignment. We
reserve all rights, claims and defences under the Charterparty, at law and
in
equity, including but not limited to any right to terminate the Charterparty,
and do not agree to any other modification to such rights, claims or defences,
whether included in, or intended by the Agreement or the Assignment
Agreement.
[Alternatively:
We
further confirm that all written statements containing instructions or demanding
actions or payments under the Charterparty may until further notice from the
Agent to the contrary be made by [ ]
and
after such notice these instructions shall be given or demands shall be made
by
the Agent.]
Place
and
date: [•]
Yours
sincerely
for
and
on behalf of
[
]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
2 (A)
FORM
OF NOTICE OF ASSIGNMENT
(Assignment
of Insurances)
To:
The
Insurers
M/V
[ ]
[ ]
as
owner (the “Owner”)
of M/V
[ ]
(the
“Vessel”)
hereby
gives you notice that all payments due to us from you in respect of the Vessel
have been (by way of security) assigned to Nordea Bank Norge ASA, Middelthuns
gate 17, N-0368 Oslo, Norway, as Agent for certain other banks and swap bank
(the “Mortgagee”)
according to an Assignment Agreement dated 29 August 2006 (the “Assignment
Agreement”)
related to a loan agreement of even date (the “Agreement”)
and
any Swap Agreements (as defined in the Agreement) made or to be made with the
Swap Bank (as defined in the Agreement), and that all payments due to us under
our policy(-ies) with yourselves must be made in accordance with the
instruction, from time to time, of the Mortgagee.
Please
note that all claims related to the insurances in respect of claims payable
in
respect of a major casualty, that is to say any claim (or the aggregate of
which) exceeding USD 500,000, shall be payable to the Mortgagee and be applied
by the Mortgagee in accordance with the terms of the Agreement. Subject thereto
all other claims, unless and until the insurers have received notice from the
Mortgagee of a default which is unremedied under the Agreement in which event
all claims shall be payable directly to the Mortgagee up to their mortgage
interest, shall be released directly for the repair or other charges involved
or
to the Owner as reimbursement if it has fully repaired the damage and paid
all
of the charges or otherwise in respect of the Owner’s actual costs in connection
with repair and/or other charges. Any amounts paid to the Owner directly shall
be paid to the Earnings Account, account no. [ ]
with
Nordea Bank Finland Plc., London Branch.
Please
note that this instruction may not be varied except with the prior written
consent of the Mortgagee.
Please
confirm your acknowledgement of the terms of this notice by completing the
Acknowledgement attached hereto. Please return the signed and dated
Acknowledgement to the Mortgagee at the address set out above.
Place
and
date: [•], [•]
Yours
sincerely
for
and
on behalf of
[ ]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
2 (B)
FORM
OF ACKNOWLEDGEMENT
(Assignment
of Insurances)
To:
Nordea
Bank Norge ASA
Xxxxxxxxxxxxxxx
00
X-0000
Xxxx
Xxxxxx
Att.:
Shipping, Offshore and Oil Services
MV
“[·]”
We
hereby
acknowledge receipt of a Notice of Assignment (the “Notice”)
from
[ ]
(the
“Owner”)
dated
[•] 2006 related to [ ]
(the
“Vessel”).
We
have
duly noted and do accept that our payments due to the Owner, under the insurance
policy(-ies) taken out for the Vessel as an Owners’ Entry pursuant to our rules,
shall be made in accordance with the instructions set out in the Notice,
including the Loss Payable clause therein, and payment due to the mortgagees
will be made to such account as from time to time instructed by Nordea Bank
Norge ASA, Middelthunsgate 17, N-0368 Oslo, Norway, which bank has been duly
noted by ourselves as the first priority mortgagee of the said Vessel on its
own
behalf and on behalf of certain other banks and swap bank as agent
therefore.
Place
and
date: [•]
Yours
sincerely
for
and
on behalf of
[INSURERS]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
3 (A)
FORM
OF NOTICE OF ASSIGNMENT
(Assignment
of Charter Guarantee)
To: [ ]
M/V
“[ ]”
We
refer
to the charter guarantee dated [•], (the “Charter
Guarantee”)
made
by you in our favour, whereby you have guaranteed the due performance of
[·]
(the
“Charterers”)
of all
of the Charterers’ obligations under the time charterparty dated [ ]
related
to M/V “[ ]”
(the
“Vessel”).
We
hereby
give you notice that:
| a) |
by
an agreement dated 29 August 2006 (the “Assignment
Agreement”)
made between among others us and Nordea Bank Norge ASA, Middelthunsgt.
17,
N-0368 Oslo, Norway, acting as agent on behalf of certain other banks
and
swap bank (the “Agent”),
related to a loan agreement of even date (the “Agreement”)
and any Swap Agreement (as defined in the Agreement) made or to be
entered
into with the Swap Bank (as defined in the Agreement), we have assigned
absolutely and have agreed to assign absolutely to and in favour
of the
Agent all our rights, title and interest, present and future, to
all
payments to be made to us under the Charter Guarantee, including
in
respect of any breach by you thereunder;
and
|
| b) |
you
are herby irrevocably authorised and instructed to make all payments
under
the Charter Guarantee to our account with Nordea Bank Finland Plc.,
London
Branch account no [•]until such time as the Agent shall direct to the
contrary whereupon all instructions or demands for actions shall
be made
by the Agent and payments are due to the Agent or as it may
direct.
|
The
authority and instructions herein contained cannot be revoked or varied by
us
without the written consent of the Agent. The provisions of this notice shall
be
governed by Norwegian law.
[Place
and date:] [•], [•]
Yours
sincerely
for
and
on behalf of
[ ]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
3 (B)
FORM
OF ACKNOWLEDGEMENT
(Assignment
of Charter Guarantee)
To: Nordea
Bank Norge ASA
Xxxxxxxxxxxxxxx
00
X-0000
Xxxx
Xxxxxx
Attn:
Shipping, Offshore and Oil Services
MV
“[·]”
We
acknowledge receipt of the above Notice of Assignment dated [•] 2006 from
[ ].
Terms
used herein shall have the same meaning as defined therein.
We
agree
to the assignment set out therein. We confirm that we have received no notice
of
any previous assignment or pledge of all or any part of any monies payable
thereunder.
We
confirm that, until otherwise notified by you, we will make all payments due
under the Charter Guarantee, subject to all permitted set-offs and deductions
thereunder, to the account specified in the said Notice of Assignment. We
reserve all rights, claims and defences under the Charter Guarantee, at law
and
in equity, and do not agree to any modifications to such rights, claims or
defences, whether included in. or intended by the Agreement or the Assignment
Agreement.
[Alternatively:
We
further confirm that all written statements containing instructions or demanding
actions or payments under the Charter Guarantee may until further notice from
the Agent to the contrary be made by [ ]
and
after such notice these instructions shall be given or demands shall be made
by
the Agent.]
This
acknowledgement and confirmation shall be governed by Norwegian
law.
Place
and
date: [•]
Yours
sincerely
for
and
on behalf of
[
]
By:
__________________________________
Name:
Title:
[authorised officer]
Appendix
4
LIST
OF PLEDGED ACCOUNTS
|
Account
Holder
|
Account
Number
|
Bank
|
|
OBO
Holdings Ltd.
|
6019.04.44107
|
Nordea
Bank Norge ASA
|
|
RMJ
OBO Shipping Ltd.
|
6012.04.43049
|
Nordea
Bank Norge ASA
|
|
Sagamore
Shipping Ltd.
|
6012.04.43057
|
Nordea
Bank Norge ASA
|
SCHEDULE
9
MANDATORY
COST FORMULAE
| 1 |
The
Mandatory Cost is an addition to the interest rate to compensate
Lenders
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 Lender, in accordance with the paragraphs set out below.
The
Mandatory Cost will be calculated by the Agent as a weighted average
of
the Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and
will be
expressed as a percentage rate per
annum.
|
| 3 |
The
Additional Cost Rate for any Lender lending from a Facility Office
in a
Participating Member State will be the percentage notified by that
Lender
to the Agent. This percentage will be certified by that Lender in
its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all
Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made
from
that Facility Office.
|
| 4 |
The
Additional Cost Rate for any Lender lending from a Facility Office
in the
United Kingdom will be calculated by the Agent as
follows:
|
| a) |
in
relation to a sterling Loan:
|
[Missing
Graphic Reference]
per cent
per annum
| b) |
in
relation to a Loan in any currency other than
sterling:
|
[Missing
Graphic Reference]
per cent
per annum
Where:
A is
the
percentage of Eligible Liabilities (assuming these to be in excess of any stated
minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is
the
percentage rate of interest (excluding the Margin and the Mandatory Cost and,
if
the Loan is an Unpaid Sum, the additional rate of interest specified in Clause
8.3 (Default interest)) payable for the relevant Interest Period on the
Loan.
C is
the
percentage (if any) of Eligible Liabilities which that Lender is required from
time to time to maintain as interest bearing Special Deposits with the Bank
of
England.
D is
the
percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.
E is
designed to compensate Lenders 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 7 below
and
expressed in pounds per £1,000,000.
| 5 |
For
the purposes of this Schedule:
|
| a) |
"Eligible
Liabilities"
and "Special
Deposits"
have the meanings given to them from time to time under or pursuant
to the
Bank of England Act 1998 or (as may be appropriate) by the Bank of
England;
|
| b) |
"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;
|
| c) |
"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); and
|
| d) |
"Tariff
Base"
has the meaning given to it in, and will be calculated in accordance
with,
the Fees Rules.
|
| 6 |
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e. 5 per cent. will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded to
four
decimal places.
|
| 7 |
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.
|
| 8 |
Each
Lender shall supply any information required by the Agent for the
purpose
of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on
or prior
to the date on which it becomes a
Lender:
|
| a) |
the
jurisdiction of its Facility Office;
and
|
| b) |
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
| 9 |
The
percentages of each Lender for the purpose of A and C above and 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 7 and 8 above and on the assumption that, unless a
Lender
notifies the Agent to the contrary, each Lender'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 Facility
Office
in the same jurisdiction as its Facility
Office.
|
| 10 |
The
Agent shall have no liability to any person if such determination
results
in an Additional Cost Rate which over or under compensates any Lender
and
shall be entitled to assume that the information provided by any
Lender or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct
in all respects.
|
| 11 |
The
Agent shall distribute the additional amounts received as a result
of the
Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for
each Lender based on the information provided by each Lender and
each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
| 12 |
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 Lender shall, in the absence of manifest error, be conclusive
and
binding on all Parties.
|
| 13 |
The
Agent may from time to time, after consultation with the Company
and the
Lenders, determine and notify to all Parties 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.
|
SCHEDULE
10
FORM
OF GUARANTEE
This
Guarantee (this “Guarantee”)
is
made on [•] between:
(1) B+H
Ocean Carriers Ltd.,
of 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx (the “Guarantor”);
and
(2) Nordea
Bank Norge ASA,
organisation no. 911 044 110, Middelthunsgt. 17, N-0368 Oslo, Norway (the
“Agent”),
acting on behalf of itself and on behalf of the Finance Parties and the Swap
Bank (as defined in the Agreement referred to below).
WHEREAS
(A) Pursuant
to the terms and conditions of a reducing revolving credit facility agreement
dated 29 August 2006 (the “Agreement”)
between the companies listed in Part I of Schedule
1
from
time to time as joint and several borrowers (the “Borrowers”),
the
banks and financial institutions listed in part II of Schedule
1
thereto
as lenders (the “Lenders”),
Nordea Bank Finland Plc., as swap bank (the “Swap
Bank”)
and
Nordea Bank Norge ASA as agent for the Lenders (the “Agent”)
and
mandated lead arranger (the “Arranger”),
the
Lenders have agreed to make available to the Borrowers a reducing revolving
credit facility in the aggregate amount of USD 202,000,000 (the “Loan”);
(B) subject
to the terms and conditions of the Agreement, the Loan will be made available
to
the Borrowers for the purpose of (i) refinancing the loans under the Existing
Credit Facility, (ii) part-financing of the purchase price for the New Vessels,
(iii) the Borrowers’ and their Subsidiaries general corporate and working
capital purposes and (iv) the payment of fees and expenses incurred in
connection with the Facility; and
(C) it
is a
condition of the Agreement that the Guarantor enters into this Guarantee. A
similar guarantee agreement may also be executed by other parties pursuant
to
the Agreement, but the execution and enforceability of such other guarantee
agreements shall not be a condition to the effectiveness or enforceability
of
this Guarantee.
IT
IS AGREED AS FOLLOWS:
| 1 |
DEFINITIONS
|
Capitalised
terms used herein shall, save as expressly defined herein, have the same
meanings as ascribed thereto in the Agreement.
| 2 |
GUARANTEE
|
| 2.1 |
Guarantee
obligations
|
The
Guarantor hereby unconditionally and irrevocably guarantees, as primary obligor
as and for its own debt (as selvskyldnerkausjonist)
and not
merely as surety to the Agent (on behalf of the Finance Parties and the Swap
Bank):
| a) |
the
due and punctual payment by the Borrowers of any and all sums which
are
now or at any time hereafter will be payable by any of the Borrowers
under
or in respect of the Finance Documents in accordance with the terms
and
provisions thereof (including, without limitation, principal, interest,
default interest, legal fees and other fees, Break Costs, transaction
and
enforcement costs and any other costs, expenses, Taxes and Tax
indemnities, currency indemnities and any other indemnities, claims
for
damages and any other costs and expenses in respect of any Event
of
Default or any other breach by any of the Borrowers under the Finance
Documents or any Swap Agreement);
|
| b) |
the
due and punctual performance by the Borrowers of all of the Borrowers’
obligations under or in respect of the Finance Documents and any
Swap
Agreement; and
|
| c) |
to
indemnify each Finance Party and the Swap Bank immediately upon the
Agent’s first written demand against any loss, liability, costs and
expenses suffered, incurred or paid by that Finance Party or the
Swap Bank
if any obligation of the Guarantor is or becomes unenforceable, invalid
or
illegal,
|
(such
amounts together referred to as the “Outstanding
Indebtedness”).
| 2.2 |
Payment
upon first demand
|
If
any of
the Borrowers shall fail to pay any sum under the Finance Documents or any
Swap
Agreement as and when such sum shall become due and payable, the Guarantor
shall
immediately upon the Agent’s first written demand pay to the Agent for the
account of the relevant Finance Party or the Swap Bank an amount equal to such
sum which any of the Borrowers shall not have paid, such payment to be made
in
immediately available funds to the account of the Agent, as the Agent may
designate, without set-off or counter-claim and free and clear of and without
deduction for or on account of any present or future Taxes.
| 2.3 |
No
limitation on number of
demands
|
Demands
under this Guarantee may be made by the Agent from time to time and there shall
be no limitation in the number of demands which can be made
hereunder.
| 2.4 |
Maximum
guarantee liability
|
The
total
liability of the Guarantor under this Guarantee shall, in the aggregate, always
be limited to USD 215,000,000 (in principal only) plus all unpaid interest,
default interest, fees, costs and expenses.
| 3 |
SURVIVAL
OF THE GUARANTOR’S
LIABILITY
|
| 3.1 |
Continuing
guarantee
|
This
Guarantee shall be a continuing guarantee which shall be effective as of the
date hereof and shall remain in full force and effect until payment in full
has
been received by the Agent (on behalf of the Finance Parties and the Swap Bank)
of the Outstanding Indebtedness.
| 3.2 |
No
discharge
|
The
obligations of the Guarantor under this Guarantee shall not be discharged,
impaired or otherwise affected by reason of any of the following events or
circumstances regardless of whether any such events or circumstances occur
with
or without the Guarantor’s knowledge and consent:
| a) |
any
total or partial invalidity, irregularity, illegality, unenforceability,
imperfection or avoidance of or any defect in any security granted
by, or
the obligation of the Borrowers, the Finance Parties, the Swap Bank
or any
other person under the Finance Documents, any Swap Agreement or any
other
document or security;
|
| b) |
any
time, waiver, consent or other indulgence granted to any of the Borrowers
or any other person or any composition or arrangement made by any
Finance
Party, the Swap Bank or any other person with the Borrowers or any
other
person;
|
| c) |
any
increase or reduction of the amount of the Loan, or variation of
the terms
and conditions for its repayment (including without limitation, the
rate
and/or method of calculation of interest payable on the
Loan);
|
| d) |
any
amendment, modification, replacement, supplement, variation, compromise,
extension or renewal of any Finance Document or any Swap Agreement
or any
right against any security over any assets of any of the Borrowers
or any
other person;
|
| e) |
any
refusal or neglect to take up or perfect or enforce or any release,
indulgence or other relief granted under any Finance Document or
any Swap
Agreement or any rights against or any security over any assets of
any of
the Borrowers or any other person or any failure to realize the full value
of any security;
|
| f) |
any
transfer, assignment, assumption or novation of rights and obligations
under the Finance Documents by any of the Borrowers, a Lender or
any other
person;
|
| g) |
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any of the Borrowers,
a
Lender, the Swap Bank or any other
person;
|
| h) |
any
corporate reorganisation, reconstruction, amalgamation, dissolution,
merger, acquisition or any other alteration in the corporate existence
or
structure of any of the Finance Parties, the Swap Bank, the Borrowers
or
any other person; or
|
| i) |
any
insolvency or similar proceedings concerning any of the Borrowers,
a
Lender, the Swap Bank or any other
person.
|
| 3.3 |
Waiver
|
The
Guarantor specifically waives all rights under the provisions of the Norwegian
Financial Agreements Act of 25 June 1999 no. 46 not being mandatory provisions,
including the following provisions (the main contents of the relevant provisions
being as indicated in the brackets):
| a) |
§
62 (1) (a) (to be notified of any security the giving of which was
a
precondition for the advance of the Loan, but which has not been
validly
granted or has lapsed);
|
| b) |
§
63 (1) - (2) (to be notified of any Event of Default under the Agreement
or any Swap Agreement and to be kept informed
thereof);
|
| c) |
§
63 (3) (to be notified of any extension granted to any of the Borrowers
in
payment of principal and/or
interest);
|
| d) |
§
63 (4) (to be notified of any of the Borrowers’ bankruptcy proceedings or
debt reorganisation proceedings and/or any application for the
latter);
|
| e) |
§
65 (3) (that the consent of the Guarantor is required for the Guarantor
to
be bound by amendments to the Agreement and any Swap Agreement that
may be
detrimental to its interest);
|
| f) |
§
66 (1) - (2) (that the Guarantor shall be released from liabilities
hereunder if security which was given, or the giving of which was
a
precondition for the advance of the Loan, is released by any of the
Finance Parties without the consent of the
Guarantor);
|
| g) |
§
66 (3) (that the Guarantor shall be released from its liabilities
hereunder if, without its consent, security the giving of which was
a
precondition for the advance of the Loan or the execution of the
Guarantee, was not validly
granted);
|
| h) |
§
67 (2) (about reduction of the Guarantor’s liabilities
hereunder);
|
| i) |
§
67 (4) (that the Guarantor's liabilities hereunder shall lapse after
ten
(10) years, as the Guarantor shall remain liable hereunder as long
as any
amount is outstanding under the Agreement, any Swap Agreement or
the
Security Documents);
|
| j) |
§
70 (as the Guarantor shall have no right of subrogation into the
rights of
the Finance Parties and the Swap Bank under the Agreement, any Swap
Agreement or the Security Documents until and unless the Finance
Parties
and the Swap Bank shall have received all amounts due or to become
due to
them under the Agreement, any Swap Agreement and the Security
Documents);
|
| k) |
§
71 (as the Finance Parties and the Swap Bank shall have no liability
first
to make demand upon or seek to enforce remedies against any of the
Borrowers or any other security provided in respect of the Borrowers’
liabilities under the Agreement and/or any Swap Agreement and/or
the
Security Documents before seeking to enforce the security created
hereunder);
|
| l) |
§
72 (as all interest and default interest due under the Agreement
and/or
any Swap Agreement and/or the Security Documents shall be secured
hereunder);
|
| m) |
§
73 (1) - (2) (as all costs and expenses related to a default under
the
Agreement and/or the Swap Agreement and/or the Security Documents
shall be
secured hereunder); and
|
| n) |
§
74 (1) - (2) (as the Guarantor shall make no claim against any of
the
Borrowers for payment until and unless the Finance Parties and the
Swap
Bank first shall have received all amounts due or to become due to
them
under the Agreement, any Swap Agreement and the Security
Documents).
|
| 3.4 |
Reinstatement
|
If
any
payment by any of the Borrowers, any other guarantor or any other provider
of
security under the Finance Documents or any Swap Agreement must be repaid,
or
any discharge given by a Lender or the Swap Bank (whether in respect of the
obligations of the Borrowers, another guarantor or any security for those
obligations or otherwise) is avoided or reduced, as a result of insolvency
or
any similar event:
| a) |
the
liability of the Guarantor shall continue as if such payment, discharge,
avoidance or reduction had not occurred;
and
|
| b) |
the
Finance Parties and the Swap Bank shall be entitled to recover the
value
or amount of that security or payment from the Guarantor, as if such
payment, discharge, avoidance or reduction had not
occurred.
|
| 4 |
UNDERTAKINGS
|
The
Guarantor undertakes to the Agent that as long as this Guarantee is
effective:
| a) |
it
shall at all times comply with all its obligations, covenants,
undertakings and representations under the Finance Documents (to
which it
is a party), and undertakes to comply with and perform all such
obligations, covenants, undertakings and representations with relates
to
the Guarantor in the Agreement, hereunder (but not limited to) the
financial covenants set out in Clause 20 (Financial covenants) of
the
Agreement and the obligation to deliver a Compliance Certificate
as set
out in Clause 19.2 (Compliance Certificate) of the
Agreement;
|
| b) |
following
receipt of a notice from the Agent of the occurrence of any Event
of
Default, the Guarantor will not make a demand for any claim of moneys
due
to the Guarantor from any of the Borrowers or any other guarantor,
or
exercise any other right or remedy to which any of the Borrowers
or any
other guarantor are entitled to in respect of such moneys unless
and until
all moneys due and payable by any of the Borrowers have been irrevocably
paid in full;
|
| c) |
if
any of the Borrowers or any other guarantor becomes the subject of
an
insolvency proceeding or shall be wound up or liquidated, the Guarantor
shall not (unless so instructed by the Agent and then only on condition
that the Guarantor holds the benefit of any claim in such insolvency
or
liquidation to pay any amounts recovered thereunder to the Agent)
make any
claim in such insolvency, winding-up or liquidation until all the
Outstanding Indebtedness owing or due has been irrevocably paid in
full;
|
| d) |
if
the Guarantor being in breach of litra b) and c) above receives or
recovers any money pursuant to such exercise, claim or proof as therein
referred to, such moneys shall be held by the Guarantor for the Agent
to
apply the same as if they were money received or recovered by the
Agent
under this Guarantee; and
|
| e) |
it
will not take or has not taken from any of the Borrowers any security
whatsoever for the obligations guaranteed hereunder.
|
| 5 |
REPRESENTATIONS
AND WARRANTIES
|
The
Guarantor represents and warrants to the Agent (for the benefit of each Finance
Party and the Swap Bank) as follows:
| a) |
the
Guarantor is duly organised and validly existing as a private limited
liability company under the laws of Bermuda and has the corporate
power
and authority to own its assets and carry on its business as it is
presently being conducted in each jurisdiction in which it owns assets
or
carry on business;
|
| b) |
the
Guarantor has the power to enter into, perform and deliver, and has
taken
all necessary actions to authorise its entry into, performance and
delivery of this Guarantee; and
|
| c) |
the
Guarantee constitutes the legal, valid and binding obligations of
the
Guarantor, enforceable against the Guarantor in accordance with its
terms
and will be so treated in any relevant courts and this Guarantee
is in
proper form for enforcement in such
courts.
|
| 6 |
ENFORCEMENT
|
| 6.1 |
Immediate
recourse
|
The
Agent
shall not be required to take any action against any of the Borrowers, any
other
guarantor or any other person before claiming from the Guarantor under this
Guarantee.
| 6.2 |
No
right of recourse and no
security
|
The
Guarantor shall have no right of recourse against any of the Borrowers, any
other guarantor or any of their respective bankruptcy estate for any amount
paid
by the Guarantor under this Guarantee for so long as any part of the Outstanding
Indebtedness remains outstanding, and the Guarantor shall not be entitled to
obtain from any of the Borrowers any security for any such right of recourse
which the Guarantor may have after such time. Any such security which the
Guarantor might obtain shall be regarded as supplementary security in favour
of
the Finance Parties and the Swap Bank. The Guarantor hereby renounces any and
all such claims it has or may get against any of the Borrowers or any other
guarantor for as long as any part of the Outstanding Indebtedness remains
outstanding.
| 6.3 |
No
subrogation in Finance Parties’ or Swap Bank’s security
|
The
Guarantor shall have no right to subrogate, wholly or partly, in any security
provided to the Finance Parties or the Swap Bank pursuant to the Finance
Documents or any Swap Agreement or in any other way until all of the Outstanding
Indebtedness has been fully and finally paid.
| 6.4 |
Action
|
Without
affecting the obligations of the Guarantor hereunder, the Agent, the other
Finance Parties and the Swap Bank may take such action as the Agent, the other
Finance Parties and the Swap Bank, as the case may be, in their own discretion
may consider appropriate against the Borrowers, the Guarantor or any other
persons or parties or securities to recover monies due and payable in respect
of
the obligations under the Agreement and/or any Swap Agreement and/or the other
Finance Documents.
| 6.5 |
Knowledge
of the Agreement and additional
security
|
The
Guarantor acknowledges and agrees that:
| a) |
it
has received a copy of and has full knowledge of the terms and provisions
of the Agreement hereunder, but not limited to the cross-default
provision
therein, and that it has been informed of the security which is to
be
granted in respect of the amounts outstanding under the Agreement
and as
listed in Clause 17 (Security) of the Agreement;
|
| b) |
it
has been informed by the Borrowers that no Event of Default under
the
Agreement has occurred as per today;
and
|
| c) |
this
Guarantee is in addition to and is not in any way prejudiced by any
other
guarantee or security now or subsequently held by any Finance Party
or the
Swap Bank as security for the Borrowers’ obligations under the Agreement
and any Swap Agreement(s).
|
| 7 |
ASSIGNMENT
|
The
Agent
and the Finance Parties may assign or transfer the rights hereunder to any
person to whom the rights and obligations of such Finance Party under the
Agreement are wholly or partly assigned or transferred to in accordance with
Clause 24 (Changes to the Lenders) of the Agreement.
| 8 |
EXPENSES
|
The
Guarantor shall pay to the Agent on demand on a full indemnity basis all
charges, costs and expenses (including the legal fees) properly incurred by
the
Finance Parties in connection with the preservation and enforcement of any
of
the rights of the Finance Parties and the Swap Bank hereunder.
| 9 |
MISCELLANEOUS
|
| 9.1 |
No
implied waivers
|
No
delay
or failure by the Agent, any other Finance Party or the Swap Bank to exercise
any right or remedy under this Guarantee shall operate or be construed as a
waiver of such rights or remedies unless otherwise expressly stated in writing
by the Agent, such Finance Party or the Swap Bank. No partial exercise of any
right or remedy shall prevent any further or other exercise of such right or
remedy or any other right or remedy. No express waiver of any rights or remedies
in respect of an Event of Default or any other event by the Agent, any other
Finance Party or the Swap Bank shall operate or be construed as a waiver of
any
rights or remedies in respect of any similar or other Event of Default or
events.
| 9.2 |
Separable
provisions
|
The
provisions of this Guarantee are separable and, if any provision of this
Guarantee is or becomes illegal, invalid or unenforceable in any respect in
any
jurisdiction, this shall not affect the legality, validity or enforceability
of
such provisions in any other jurisdiction or the legality, validity or
enforceability of the remaining provisions of the Guarantee in that or any
other
jurisdiction.
| 9.3 |
Borrowers
as agent for the Guarantor
|
The
Borrowers shall be the agent of the Guarantor and any notice, statement or
agreement by the Borrowers to or with the any of the Finance Parties or the
Swap
Bank shall be binding on the Guarantor.
| 9.4 |
Law
and jurisdiction
|
| 9.4.1 |
Governing
law
|
This
Guarantee shall be governed by and construed in accordance with Norwegian
law.
| 9.4.2 |
Main
jurisdiction
|
The
Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of the
Norwegian courts, the venue to be Oslo City Court (Oslo tingrett) and the
Guarantor agrees for the benefit of the Finance Parties and the Swap Bank that
any legal action or proceedings arising out of or in connection with this
Guarantee against the Guarantor or any of its assets may be brought in the
said
court.
| 9.4.3 |
Alternative
jurisdiction
|
This
Clause 9.4.3 is for the exclusive benefit of the Finance Parties and the Swap
Bank each of which have the right:
| a) |
to
commence proceedings against the Guarantor or its assets both in
any court
in Norway and any other jurisdiction;
and
|
| b) |
to
commence enforcement proceedings in any jurisdiction concurrently
with or
in addition to proceedings in Norway or without commencing proceedings
in
Norway.
|
The
parties agree that only the courts of Norway and not those of any other state
shall have jurisdiction to determine any claim which the Guarantor may have
against the Agent, any other Finance Party or the Swap Bank and that the
Guarantor shall only be entitled to commence legal action or proceedings against
the Agent, any such other Finance Party and the Swap Bank in relation to this
Guarantee in Oslo City Court (Oslo tingrett).
| 10 |
NOTICES
|
Every
notice or demand under this Guarantee shall be made by letter or telefax.
Any
such
notice or communication given by the Guarantor shall be addressed to the Agent
at the following address:
If
to the
Agent: Nordea
Bank Norge ASA
Middelthunsgt.
17
X.X.
Xxx
0000 Xxxxxxx
X-0000
Xxxx, Xxxxxx
Att:
Shipping, Offshore and Oil Services
Telefax
No: + 47 22 48 66 68
Any
notice, demand or other communication to be given to the Guarantor shall be
sent
to the Guarantor at the following address:
If
to the
Guarantor: B
+ H
Ocean Carriers Ltd.
c/o
B + H
Management Ltd.
Par-la-Ville
Place
00
Xxx-xx-Xxxxx Xxxx
Xxxxxxxx
XXXX
Xxxxxxx
Xxx.:
Telefax:
+ 1 441 295 6796
| 10.1 |
Service
of process
|
Without
prejudice to any other mode of service, the Guarantor:
| a) |
irrevocably
appoints Wikborg Rein & Co., Kronprinsesse Märthas xxxxx 1, X.X. Xxx
0000 Xxxx, X-0000 Xxxx, Xxxxxx as its agent for service of process
relating to any proceedings before Norwegian courts in connection
with
this Agreement; and
|
| b) |
agrees
that failure by its process agent to notify it of the process will
not
invalidate the proceedings
concerned.
|
IN
WITNESS WHEREOF, the parties hereto have duly executed this Guarantee in two
(2)
original copies on the date and year first written above.
The
Guarantor: The
Agent:
B+
H Ocean Carriers Ltd. Nordea
Bank Norge ASA
By:
_____________________________ By:
____________________________
Name: Name:
Title: Title:
SIGNATORIES
Borrowers:
OBO
Holdings Ltd.
By:
/s/
Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
BHOBO
One Ltd.
By:
/s/
Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
BHOBO
Two Ltd.
By:
/s/
Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
BHOBO
Three Ltd.
By:
/s/
Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
RMJ
OBO Shipping Ltd.
By:
/s/
Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
Sagamore
Shipping Ltd.
By:
/s/
Xxxxxxx Xxxxxxx
_
Name: Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
Lenders:
Nordea
Bank Norge ASA
By:
__/s/_Olav Ringdal_____________
Name:
Title: Attorney-in-Fact
DVB
Bank America NV
By:
__/s/ Siri Wennevik________
Name:
Title: Attorney-in-Fact
HSH
Nordbank AG
By:
__/s/ Siri Wennevik________
Name:
Title: Attorney-in-Fact
The
Governor and Company of the Bank of Scotland
By:
__/s/ Siri Wennevik_________
Name:
Title: Attorney-in-Fact
Bookrunner:
Nordea
Bank Norge ASA
By:
__/s/_Olav Ringdal_____________
Name:
Title: Attorney-in-Fact
Agent:
Nordea
Bank Norge ASA
By:
__/s/_Olav Ringdal_____________
Name:
Title: Attorney-in-Fact
Arranger:
Nordea
Bank Norge ASA
By:
__/s/_Olav Ringdal_____________
Name:
Title: Attorney-in-Fact
Co-arrangers:
DVB
Bank America NV
By:
__/s/ Siri Wennevik________
Name:
Title: Attorney-in-Fact
HSH
Nordbank AG
By:
__/s/ Siri Wennevik________
Name:
Title: Attorney-in-Fact
The
Governor and Company of the Bank of Scotland
By:
__/s/ Siri Wennevik________
Name:
Title: Attorney-in-Fact
Swap
Bank:
Nordea
Bank Finland Plc.
By:
__/s/ Torbjorn Nulsund
Name:
Title: Attorney-in-Fact
We,
B+H
Ocean Carriers Ltd., hereby acknowledge and agree to the terms of this Agreement
and agree to be bound by Clauses 18 (Representations and warranties), 19
(Information undertakings), 20 (Financial covenants), 21 (General undertakings)
and 23 (Events of Default) of this Agreement to the extent applicable to the
Guarantor as if we were a party to this Agreement.
29
August
2006
Guarantor:
B+H
Ocean Carriers Ltd.
By:
__/s/ X. Xxxxxxx Dalzell________________________________
Name:
Xxxxxxx
Xxxxxxx
Title: Attorney-in-Fact
