DATED 7 April 2010 AMORGOS SHIPPING CORPORATION ANDROS SHIPPING CORPORATION ANTIPAROS SHIPPING CORPORATION IKARIA SHIPPING CORPORATION KOS SHIPPING CORPORATION and MYTILENE SHIPPING CORPORATION as Borrowers DEUTSCHE SCHIFFSBANK AG ALPHA BANK AE CREDIT...
Private
and Confidential
DATED
7 April 2010
AMORGOS
SHIPPING CORPORATION
ANDROS SHIPPING CORPORATION
ANTIPAROS SHIPPING CORPORATION
IKARIA SHIPPING CORPORATION
KOS SHIPPING CORPORATION
and
MYTILENE SHIPPING CORPORATION
as Borrowers
ANDROS SHIPPING CORPORATION
ANTIPAROS SHIPPING CORPORATION
IKARIA SHIPPING CORPORATION
KOS SHIPPING CORPORATION
and
MYTILENE SHIPPING CORPORATION
as Borrowers
DEUTSCHE
SCHIFFSBANK AG
ALPHA BANK AE
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Lenders
ALPHA BANK AE
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Lenders
DEUTSCHE
SCHIFFSBANK AG
as Arranger, Swap Bank, Agent, Account Bank
and Security Trustee
as Arranger, Swap Bank, Agent, Account Bank
and Security Trustee
and
ALPHA BANK AE
as Account Bank
ALPHA BANK AE
as Account Bank
FACILITY
AGREEMENT FOR A USD 150,000,000
TERM LOAN
FACILITY
IN SIX
TRANCHES
PIRAEUS
THIS AGREEMENT dated 7 April 2010 is made BY and
BETWEEN:
(1) AMORGOS SHIPPING CORPORATION, ANDROS SHIPPING
CORPORATION, ANTIPAROS SHIPPING CORPORATION, IKARIA SHIPPING
CORPORATION, KOS SHIPPING CORPORATION and MYTILENE
SHIPPING CORPORATION as Borrowers;
(2) DEUTSCHE SCHIFFSBANK AG, ALPHA BANK AE and CREDIT
AGRIDOLE CORPORATE AND INVESTMENT BANK as Lenders; and
(3) DEUTSCHE SCHIFFSBANK AG as Arranger, Account
Bank, Agent and Security Trustee;
(4) DEUTSCHE SCHIFFSBANK AG as Swap Bank; and
(5) ALPHA BANK AE as Account Bank.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1 PURPOSE,
DEFINITIONS, CONSTRUCTION & MAJORITY LENDERS
1.1 Purpose
This Agreement sets out the terms and conditions on which
Deutsche Schiffsbank AG, Alpha Bank AE and Credit Agricole
Corporate and Investment Bank agree to make available to the
Borrowers a loan of up to one hundred and fifty million Dollars
(USD 150,000,000) in 6 equal Tranches, for the purpose of
part-financing the purchase price of two IMO II/III Chemical
Carriers and 4 MR Product Tankers which are to be constructed by
the Builder.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
“Account Bank” means, (i) in
relation to the DSB Equity Deposit Account, Deutsche Schiffsbank
AG acting through its office at Xxxxxxx 00 X-00000 Xxxxxx,
Xxxxxxx and (ii) in relation to the Alpha Equity Deposit
Account, the Earnings Accounts and the Retention Account, Alpha
Bank AE acting through its office at 00 Xxxx Xxxxxxx, Xxxxxxx,
Xxxxxx, or, in each case, such other Lender as may be designated
by the Agent as an Account Bank for the purposes of this
Agreement;
“Advance” means the principal amount of
each drawing in respect of the Loan to be made pursuant to
Clause 2.5;
“Agent” means Deutsche Schiffsbank AG
acting through its office at Xxxxxxx 00 X-00000 Xxxxxx, Xxxxxxx
(or of such other address as may last have been notified to the
other parties to this Agreement pursuant to clause 17.2.3)
or such other person as may be appointed as agent by the Lenders
pursuant to clause 16.13;
“Alpha Equity Deposit Account” means an
interest bearing USD Account required to be opened hereunder
with the relevant Account Bank in the joint names of the
Borrowers designated “Navios — Equity Deposit
Account” and includes any other account designated in
writing by the Agent to be an Equity Deposit Account for the
purposes of this Agreement;
“Alpha Equity Deposit Account Pledge”
means a first priority charge required to be executed hereunder
between the Borrowers and the Security Trustee in respect of the
Alpha Equity Deposit Account in such form as the Agent and the
Majority Lenders may require in their sole discretion;
“Approved Broker” means each of
Fearnleys A.S., Oslo Shipbrokers A.S., Clarkson Valuations
Limited, Xxxxxxx Xxxxxx & Xxxxx Shipbrokers Ltd., X.X.
Xxxxxx Shipbrokers Ltd., Allied Shipbroking, Greece, XX Xxxxxx
ASA, ICAP Shipping Limited, ACM Ltd., London, or such other
reputable, independent and first class firm of shipbrokers
specialising in the valuation of vessels of the relevant type
appointed by the Lenders and agreed with the Borrowers;
“Arranger” means Deutsche Schiffsbank AG
acting through its office at Xxxxxxx 00, X-00000, Xxxxxx,
Xxxxxxx;
“Banking Day” means a day on which
dealings in deposits in USD are carried on in the London
Interbank Eurocurrency Market and (other than Saturday or
Sunday) on which banks are open for business in Athens, London,
Bremen, Piraeus, Paris and New York City (or any other relevant
place of payment under clause 6);
“Banks” means, together, the Arranger,
the Agent, the Security Trustee, the Account Banks, the Lenders,
the Swap Bank and any Transferee Lenders;
“Borrowed Money” means Indebtedness in
respect of (i) money borrowed or raised and debit balances
at banks, (ii) any bond, note, loan stock, debenture or
similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted
(otherwise than on a non-recourse basis), (v) deferred
payments for assets or services acquired, (vi) finance
leases and hire purchase contracts, (vii) swaps, forward
exchange contracts, futures and other derivatives,
(viii) any other transaction (including without limitation
forward sale or purchase agreements) having the commercial
effect of a borrowing or raising of money or of any of
(ii) to (vii) above and (ix) guarantees in
respect of Indebtedness of any person falling within any of
(i) to (viii) above;
“Borrower” means each of AMORGOS
SHIPPING CORPORATION (“Amorgos”), ANDROS
SHIPPING CORPORATION (“Andros”), ANTIPAROS
SHIPPING CORPORATION (“Antiparos”), IKARIA
SHIPPING CORPORATION (“Ikaria”), KOS SHIPPING
CORPORATION (“Kos”) and MYTILENE SHIPPING
CORPORATION (“Mytilene”) each having its
registered office at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx, XX00000 and in the
plural means all of them;
“Break Costs” means the aggregate amount
of all losses, premiums, penalties, costs and expenses
whatsoever certified by the Agent at any time and from time to
time as having been incurred by the Lenders or any of them in
maintaining or funding their Contributions or in liquidating or
re-employing fixed deposits acquired to maintain the same as a
result of either:
(a) any repayment or prepayment of the Loan or any part
thereof otherwise than (i) in accordance with
clause 4.1 or (ii) on an Interest Payment Date whether
on a voluntary or involuntary basis or otherwise
howsoever; or
(b) as a result of the Borrowers failing or being incapable
of drawing an Advance after a relevant Drawdown Notice has been
given;
“Certified Copy” means in relation to
any document delivered or issued by or on behalf of any company,
a copy of such document certified as a true, complete and up to
date copy of the original by any of the directors or officers
for the time being of such company or by such company’s
attorneys or solicitors;
“Charter Assignment” means a specific
assignment of each Extended Employment Contract required to be
executed hereunder by any Borrower in favour of the Security
Trustee (including any notices
and/or
acknowledgements
and/or
undertakings associated therewith) in such form as the Agent and
the Majority Lenders may require in their sole discretion;
“Charter Insurances” means all policies
and contracts of insurance which are from time to time during
the Facility Period in place or taken out or entered into by or
for the benefit of the Owners in respect of loss of earnings and
all benefits thereof (including claims of whatsoever nature and
return of premiums);
“Charter Insurance Assignment” means a
first priority assignment of the Charter Insurances executed or
to be executed by such named insured as the Agent may require in
favour of the Security Trustee, in such form as the Agent and
the Majority Lenders may in their sole discretion require;
“Classification” means, in relation to
each Vessel, the highest class available for a vessel of her
type with the relevant Classification Society;
“Classification Society” means, in
relation to each Vessel, any IACS classification society which
the Lenders shall, at the request of the Borrowers, have agreed
in writing shall be treated as the classification society in
relation to such Vessel for the purposes of the relevant Ship
Security Documents;
“Commitment” means, in relation to the
Loan in relation to each Lender, the sum set out opposite its
name in schedule 1 or any replacement thereof and in
relation to each Tranche in relation to each Lender one sixth of
the sum set out opposite its name in schedule 1 or any
replacement thereof, or otherwise pursuant to the terms of any
relevant Transfer Certificate as the amount which, subject to
the terms of this Agreement, it is obliged to advance to the
Borrowers hereunder in respect of the Loan Facility, in each
case as such amount may have been reduced
and/or
cancelled under this Agreement;
“Compliance Certificate” means a
certificate substantially in the form set out in schedule 6
signed by the chief financial officer of the Corporate Guarantor;
“Compulsory Acquisition” means, in
respect of a Vessel, requisition for title or other compulsory
acquisition including, if that ship is not released therefrom
within the Relevant Period, capture, appropriation, forfeiture,
seizure, detention, deprivation or confiscation howsoever for
any reason (but excluding requisition for use or hire) by or on
behalf of any Government Entity or other competent authority or
by pirates, hijackers, terrorists or similar persons;
“Relevant Period” means for the purposes of this
definition of Compulsory Acquisition either (i) thirty (30)
(or in the respect of pirates, hijackers, terrorists or similar
persons, ninety (90)) days or, (ii) in the respect of
pirates, hijackers, terrorists or similar persons, if relevant
underwriters confirm in writing (in customary terms) prior to
the end of such ninety (90) day period that such capture
will be covered by the relevant Owner’s war risks insurance
if continuing for a further period exceeding six
(6) calendar months, the shorter of eight (8) months
and such period at the end of which cover is confirmed to attach;
“Contribution” means, at any relevant
time, in relation to each Lender, the principal amount of the
Loan owing to such Lender at such time;
“Corporate Guarantee” means the
guarantee required to be executed hereunder by the relevant
Corporate Guarantor in such form as the Agent and the Majority
Lenders may require in their sole discretion;
“Corporate Guarantor” means
(a) prior to the Share Acquisition Date, Navios Maritime
Holdings Inc., a company incorporated in the Xxxxxxxx Islands
and having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx,
XX00000 and (b) thereafter, Navios Acquisition;
“Default” means any Event of Default or
any event or circumstance which with the giving of notice or
lapse of time or the satisfaction of any other condition (or any
combination thereof) would constitute an Event of Default;
“Delivered Tranche” means each Tranche
which has been applied in financing a Vessel which has been
transferred and delivered by the Builder to its Owner;
“Delivery Date” means, in relation to a
Vessel, the date on which title to and possession of that Vessel
is transferred from the Builder to the relevant Borrower;
“Deutscher Rahmenvertrag” means the
Master Agreement for Financial Derivatives Transactions
(“Rahmenvertrag für Finanztermingeschäfte”)
made or to be made between the Borrowers and the Swap Bank and
includes all Transactions from time to time entered into by the
Borrowers for the purpose of hedging the Borrowers’
exposure under this Agreement to fluctuations in LIBOR arising
from the funding of the Loan (or any part thereof) and
Confirmations from time to time exchanged thereunder;
“Deutscher Rahmenvertrag Assignment”
means the deed of assignment of the Deutscher Rahmenvertrag
executed or (as the context may require) to be each executed by
the Borrowers in favour
of the Security Trustee in such form as the Agent and the
Majority Lenders may require in their sole discretion;
“Dollars” and
“USD” mean the lawful currency of the
USA and in respect of all payments to be made under any of the
Security Documents means funds which are for same day settlement
in the New York Clearing House Interbank Payments System (or
such other US dollar funds as may at the relevant time be
customary for the settlement of international banking
transactions denominated in US dollars);
“Drawdown Date” means, in relation to
each Advance, any date being a Banking Day falling during the
Drawdown Period, on which the relevant Advance is, or is to be,
made available;
“Drawdown Notice” means, in relation to
each Advance, a notice substantially in the form of
schedule 2;
“Drawdown Period” means the period
commencing on the Execution Date and ending in respect of:
(i) Tranche A on 29 March 2011;
(ii) Tranche B on 29 May 2011;
(iii) Tranche C on 25 January 2013;
(iv) Tranche D on 27 June 2013;
(v) Tranche E on 26 May 2013; and
(vi) Tranche F on 27 June 2013
or, in each case, on the latest date the Vessel to be
financed by the relevant Tranche may be delivered in accordance
with the Shipbuilding Contract relating thereto or on the date
on which the Commitment in respect of that Tranche is finally
cancelled or no longer available under the terms of this
Agreement;
“DSB Equity Deposit Account” means an
interest bearing USD Account required to be opened hereunder
with the relevant Account Bank in the joint names of the
Borrowers designated “Navios — Equity Deposit
Account” and includes any other account designated in
writing by the Agent to be an Equity Deposit Account for the
purposes of this Agreement;
“DSB Equity Deposit Account Pledge”
means a first priority charge required to be executed hereunder
between the Borrowers and the Lenders in respect of the DSB
Equity Deposit Account in such form as the Lenders may require
in their sole discretion;
“Earnings Account” means, in respect of
each Borrower, an interest bearing USD Account required to be
opened hereunder with the relevant Account Bank in the name of
that Borrower designated “[NAME OF BORROWER] —
Earnings Account” and includes any other account designated
in writing by the Agent to be an Earnings Account for the
purposes of this Agreement;
“Earnings Account Pledge” means, in
respect of each Earnings Account, a first priority charge
required to be executed hereunder between the relevant Borrower
and the Security Trustee in respect of its Earnings Account in
such form as the Agent and the Majority Lenders may require in
their sole discretion, and in the plural means all of them;
“Encumbrance” means any mortgage,
charge, pledge, lien, hypothecation, assignment, title
retention, preferential right, option, trust arrangement or
security interest or other encumbrance, security or arrangement
conferring howsoever a priority of payment in respect of any
obligation of any person;
“Environmental Affiliate” means any
agent or employee of any Borrower, the Manager, or any other
Group Member or any other person having a contractual
relationship with any Borrower, the Manager, or any other Group
Member in connection with any Relevant Ship or its operation or
the carriage of cargo
and/or
passengers thereon
and/or the
provision of goods
and/or
services on or from any Relevant Ship;
“Environmental Approval” means any
consent, authorisation, licence or approval of any governmental
or public body or authorities or courts applicable to any
Relevant Ship or its operation or the carriage of cargo
and/or
passengers thereon
and/or the
provision of goods
and/or
services on or from any Relevant Ship required under any
Environmental Law;
“Environmental Claim” means (i) any
claim by any applicable Government Entity alleging breach of, or
non-compliance with, any Environmental Laws or Environmental
Approvals or otherwise howsoever relating to or arising out of
an Environmental Incident or (ii) any claim by any other
third party howsoever relating to or arising out of an
Environmental Incident (and, in each such case,
“claim” shall include a claim for damages
and/or
direction for
and/or
enforcement relating to
clean-up
costs, removal, compliance, remedial action or otherwise) or
(iii) any Proceedings arising from any of the foregoing;
“Environmental Incident” means,
regardless of cause, (i) any discharge or release of
Environmentally Sensitive Material from any Relevant Ship;
(ii) any incident in which Environmentally Sensitive
Material is discharged or released from a vessel other than a
Relevant Ship which involves collision between a Relevant Ship
and such other vessel or some other incident of navigation or
operation, in either case, where the Relevant Ship, the Manager
and/or the
relevant Owner
and/or the
relevant Group Member
and/or the
relevant Operator are actually, contingently or allegedly at
fault or otherwise howsoever liable (in whole or in part) or
(iii) any incident in which Environmentally Sensitive
Material is discharged or released from a vessel other than a
Relevant Ship and where such Relevant Ship is actually or
reasonably likely to be arrested as a result
and/or where
the Manager
and/or the
relevant Owner
and/or other
Group Member
and/or the
relevant Operator are actually or contingently at fault or
allegedly and reasonably likely to be found at fault or
otherwise howsoever liable to any administrative or legal action;
“Environmental Laws” means all laws,
regulations, conventions and agreements whatsoever relating to
pollution, human or wildlife well-being or protection of the
environment (including, without limitation, the United States
Oil Pollution Act of 1990 and any comparable laws of the
individual States of the USA);
“Environmentally Sensitive Material”
means oil, oil products or any other products or substance which
are polluting, toxic or hazardous or any substance the release
of which into the environment is howsoever regulated, prohibited
or penalised by or pursuant to any Environmental Law;
“Equity Deposit Accounts” means,
together, the Alpha Equity Deposit Account and the DSB Equity
Deposit Account;
“Event of Default” means any of the
events or circumstances listed in clause 10.1;
“Execution Date” means the date on which
this Agreement has been executed by all the parties hereto;
“Extended Employment Contract” means, in
respect of a Vessel, any time charterparty, contract of
affreightment or other contract of employment of such ship
(including the entry of any Vessel in any pool) which has a
tenor exceeding twenty four (24) months (including any
options to renew or extend such tenor);
“Facility Period” means the period
starting on the date of this Agreement and ending on such date
as all obligations whatsoever of all of the Security Parties
under or pursuant to the Security Documents whensoever arising,
actual or contingent, have been irrevocably paid, performed
and/or
complied with;
“Final Delivery Date” means the date on
which all of the Vessels shall have been transferred and
delivered by the Builder to the Borrowers;
“Flag State” means Panama or any other
country acceptable to the Lenders;
“General Assignment” means, in respect
of each Vessel, the deed of assignment of its earnings,
insurances and requisition compensation executed or to be
executed by the relevant Owner in favour of
the Security Trustee in such form as the Agent and the Majority
Lenders may require in their sole discretion and in the plural
means all of them;
“Government Entity” means any national
or local government body, tribunal, court or regulatory or other
agency and any organisation of which such body, tribunal, court
or agency is a part or to which it is subject;
“Group” means at any relevant time the
Corporate Guarantor whose Corporate Guarantee is in force and
effect at that time and its subsidiaries but not including any
subsidiary which is listed on any public stock exchange;
“Group Member” means any member of the
Group;
“Indebtedness” means any obligation
howsoever arising (whether present or future, actual or
contingent, secured or unsecured as principal, surety or
otherwise) for the payment or repayment of money;
“Interest Payment Date” means, in
relation to each Tranche, the last day of an Interest Period
and, if an Interest Period is longer than 6 months, the
date falling at the end of each successive period of
6 months during such Interest Period starting from its
commencement;
“Interest Period” means each period for
the calculation of interest in respect of the Loan or, as the
case may be, Tranche ascertained in accordance with the
provisions of clause 3;
“ISM Code Documentation” means, in
relation to a Vessel, the document of compliance (DOC) and
safety management certificate (SMC) issued by a Classification
Society pursuant to the ISM Code in relation to that Vessel
within the periods specified by the ISM Code;
“ISM SMS” means the safety management
system which is required to be developed, implemented and
maintained under the ISM Code;
“ISPS Code” means the International Ship
and Port Security Code of the International Maritime
Organisation and includes any amendments or extensions thereto
and any regulations issued pursuant thereto;
“ISSC” means an International Ship
Security Certificate issued in respect of a Vessel pursuant to
the ISPS Code;
“Latest Accounts” means, in respect of
any financial quarter or year of the Group, the latest unaudited
(in respect of each financial quarter) or audited (in respect of
each financial year) financial statements required to be
prepared pursuant to clause 8.1.6;
“Lenders” means the banks listed in
schedule 1 and Transferee Lenders;
“Lending Branch” means, in respect of
each Lender, its office or branch at the address set out beneath
its name in schedule 1 (or, in the case of a Transferee, in
the Transfer Certificate to which it is a party as Transferee)
or such other office or branch as any Lender shall from time to
time select and notify through the Agent to the other parties to
this Agreement;
“LIBOR” means, the greater of
(i) and (ii) below:
(i) the rate equal to the offered quotation for deposits in
USD in an amount comparable with the amount in relation to which
LIBOR is to be determined for a period equal to, or as near as
possible equal to, the relevant period which appears on Reuters
Screen LIBOR01 at or about 11 a.m. on the second Banking
Day before the first day of such period (and, for the purposes
of this Agreement, “Reuters Screen LIBOR01” means the
display designated as “LIBOR01” on the Reuters Service
or such other page as may replace LIBOR01 on that service for
the purpose of displaying rates comparable to that rate or on
such other service as may be nominated by the British
Bankers’ Association as the information vendor for the
purpose of displaying the British Bankers’ Association
Interest Settlement Rates for USD); and
(ii) the rate per annum reasonably determined by the Agent
from any source the Agent may reasonably select to be the rate
which reflects the actual cost to the Lenders of funding their
respective Contributions (or the relevant part thereof) during
the relevant Interest Period;
“Liquidity” means the aggregate of all
cash deposits legally and beneficially owned by any Group Member
and which are deposited with any of the Banks which:
(a) are free from any Encumbrance other than, in respect of
any deposit with a Bank, any Encumbrance given as security for
the obligations of the Borrowers under this Agreement; and
(b) are otherwise at the free and unrestricted disposal of
the relevant Group Member by which it is owned
but excluding any sums on the Equity Deposit Accounts;
“Loan” means the aggregate principal
amount in respect of the Loan Facility owing to the Lenders
under this Agreement at any relevant time;
“Loan Facility” means the loan facility
provided by the Lenders on the terms and subject to the
conditions of this Agreement in the amount of
USD 150,000,000;
“Majority Lenders” means at any relevant
time when there are two Lenders, both of them, and at any time
when there are more than two Lenders, the Lenders whose
Contributions exceed 75% of the Loan;
“Management Agreement” means, in respect
of each Vessel, the agreement between the relevant Owner and the
Manager, in a form previously approved in writing by the Agent
(acting on the instructions of the Majority Lenders);
“Manager” means Navios ShipManagement
Inc., a company incorporated in the Xxxxxxxx Islands and having
its registered office at Trust Company Complex, Ajeltake
Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx, XX00000 or
(without the need for thew Agent’s consent) any other
subsidiary of Navios Maritime Holdings Inc. or any other person
appointed by an Owner, with the prior written consent of the
Agent, as the manager of the relevant Mortgaged Vessel;
“Manager’s Undertakings” means,
collectively, the undertakings and assignments required to be
executed hereunder by the Manager in favour of the Security
Trustee in respect of each of the Vessels each in such form as
the Agent and the Majority Lenders may require in their sole
discretion (and “Manager’s Undertakings”
means all of them);
“Margin” means, in relation to each
Interest Period 2.50% per annum;
“Material Adverse Effect” means any
event or occurrence which the Majority Lenders reasonably
determine has had or could reasonably be expected to have a
material adverse effect on (i) the Banks’ rights
under, or the security provided by, any Security Document,
(ii) the ability of any Security Party to perform or comply
with any of its obligations under any Security Document or
(iii) the value or nature of the property, assets,
operations, liabilities or financial condition of any Security
Party;
“Maturity Date” means in respect of each
Tranche, the date falling 6 years after the Delivery Date
of the Vessel which is being financed by that Tranche;
“MII & MAP Policy” means a
mortgagee’s interest and pollution risks insurance policy
(including additional perils (pollution) cover) in respect of
each Mortgaged Vessel to be effected by the Security Trustee on
or before the first Drawdown Date to cover the Mortgaged Vessels
as the same may be renewed or replaced annually thereafter and
maintained throughout the Facility Period through such brokers,
with such underwriters and containing such coverage as may be
acceptable to the Security Trustee in its sole discretion,
insuring a sum of at least one hundred and ten per cent (110%)
of the Loan in respect of mortgagee’s interest insurance
and one hundred and ten per cent (110%) of the Loan in respect
of additional perils cover;
“Minimum Liquidity” means
(i) during 2010 and 2011 and up to the Final Delivery Date
USD40,000,000 and (ii) thereafter, USD35,000,000;
“month” means a period beginning in one
calendar month and ending in the next calendar month on the day
numerically corresponding to the day of the calendar month on
which it started, provided that (a) if the period started
on the last Banking Day in a calendar month or if there is no
such numerically corresponding day, it shall end on the last
Banking Day in such next calendar month and (b) if such
numerically corresponding day is not a Banking Day, the period
shall end on the next following Banking Day in the same calendar
month but if there is no such Banking Day it shall end on the
preceding Banking Day and “months” and
“monthly” shall be construed accordingly;
“Mortgage” means, in respect of each
Vessel, the first preferred Ship mortgage thereof required to be
executed hereunder by the Owner thereof in favour of the
Security Trustee, each in such form as the Agent and the
Majority Lenders may require in their sole discretion and in the
plural means all of them;
“Mortgaged Vessel” means, at any
relevant time, any Vessel which is at such time subject to a
Mortgage and a Vessel shall, for the purposes of this Agreement,
be regarded as a Mortgaged Vessel as from the date on which the
Mortgage of that Vessel has been executed and registered in
accordance with this Agreement until whichever shall be the
earlier of (i) the payment in full of the amount required
to be paid to the Agent pursuant to clause 4.3 or 4.5
following the Total Loss or sale respectively of such Vessel and
(ii) the end of the Facility Period;
“Navios Acquisition” means Navios
Maritime Acquisition Corporation a company incorporated in the
Xxxxxxxx Islands and having its registered office at
Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Xxxxxxxx Xxxxxxx, XX00000;
“Negative Pledge” means negative pledge
of the shares of and in each Borrower to be executed by the
Shareholder in favour of the Security Trustee in such form as
the Agent and the Majority Lenders may require in their sole
discretion and in the plural means all of them;
“Net Profit” means for each financial
year of the Corporate Guarantor, the Net Profit as set out in
the relevant Latest Accounts;
“Net Worth” means by reference to the
Latest Accounts, the Total Assets (based on book values) less
Total Liabilities of the Group;
“Novation Agreement” means each of the
Vessel A Novation Agreement, the Vessel B Novation Agreement,
the Vessel C Novation Agreement, the Vessel D Novation
Agreement, the Vessel E Novation Agreement and the Vessel F
Novation Agreement and in the plural means all of them;
“Operator” means any person who is from
time to time during the Facility Period concerned in the
operation of a Relevant Ship and falls within the definition of
“Company” set out in rule 1.1.2 of the ISM Code;
“Owner” means, in relation to:
(i) Vessel A, Amorgos;
(ii) Vessel B, Andros;
(iii) Vessel C, Antiparos;
(iv) Vessel D, Ikaria;
(v) Vessel E, Kos; and
(vi) Vessel F, Mytilene
and in the plural means all of them;
“Permitted Encumbrance” means any
Encumbrance in favour of the Banks or any of them created
pursuant to the Security Documents and Permitted Liens;
“Permitted Liens” means any lien on any
Vessel for master’s, officer’s or crew’s wages
outstanding in the ordinary course of trading, any lien for
salvage and any ship repairer’s or outfitter’s
possessory lien for a sum not (except with the prior written
consent of the Agent) exceeding the Casualty Amount (as defined
in the Ship Security Documents for such Vessel);
“Pertinent Jurisdiction” means any
jurisdiction in which or where any Security Party is
incorporated, resident, domiciled, has a permanent establishment
or assets, carries on, or has a place of business or is
otherwise howsoever effectively connected;
“Predelivery Security Assignment” means,
in respect of each Vessel, a deed of assignment of the
Shipbuilding Contract and of the Refund Guarantee in respect
thereof in such form as the Agent and the Majority Lenders may
require in their sole discretion and in the plural means all of
them;
“Prepayment Ratio” means in respect of
the sale or Total Loss of a Mortgaged Vessel the Valuation
Amount of such Mortgaged Vessel immediately prior to such sale
or Total Loss divided by the Security Value immediately prior to
such sale or Total Loss and for these purposes any valuation of
a Vessel (calculated in accordance with Clause 8.2.2) may be no
more than two months old;
“Proceedings” means any litigation,
arbitration, legal action or complaint or judicial,
quasi-judicial or administrative proceedings whatsoever arising
or instigated by anyone (private or governmental) in any court,
tribunal, public office or other forum whatsoever and
wheresoever (including, without limitation, any action for
provisional or permanent attachment of any thing or for
injunctive remedies or interim relief and any action instigated
on an ex parte basis);
“Refund Guarantee” means each of the
Vessel A Refund Guarantee, the Vessel B Refund Guarantee, the
Vessel C Refund Guarantee, the Vessel D Refund Guarantee, the
Vessel E Refund Guarantee and the Vessel F Refund Guarantee and
in the plural means all of them;
“Refund Guarantor” means, in relation to
each Vessel, the issuer of the Refund Guarantee in respect
thereof;
“Registry” means, in relation to each
Vessel, the office of the registrar, commissioner or
representative of the Flag State, who is duly empowered to
register such Vessel, the relevant Owner’s title thereto
and the relevant Mortgage under the laws and flag of the Flag
State;
“Relevant Tranche” means, in respect of
Vessel A, Tranche A, in respect of Vessel B,
Tranche B, in respect of Vessel C, Tranche C, in
respect of Vessel D, Tranche D, in respect of Vessel E,
Tranche E and in respect of Vessel F, Tranche F;
“Relevant Ship” means each of the
Vessels and any other ship from time to time (whether before or
after the date of this Agreement) owned, managed or crewed by,
or chartered to, any Group Member;
“Relevant Vessel” means the Vessel in
respect of which the relevant Advance is being made available;
“Repayment Dates” means, in respect of
each Tranche, subject to clause 6.3, each of the dates falling
at six-monthly intervals after the Delivery Date in respect of
the Vessel which that Tranche finances, up to and including the
date falling 72 months after such date;
“Required Authorisation” means any
authorisation, consent, declaration, licence, permit, exemption,
approval or other document, whether imposed by or arising in
connection with any law, regulation, custom, contract, security
or otherwise howsoever which must be obtained at any time from
any person, Government Entity, central bank or other
self-regulating or supra-national authority in order to enable
the Borrowers lawfully to borrow the loan or draw any Advance
and/or to
enable any Security Party lawfully and continuously to continue
its corporate existence
and/or
perform all its obligations whatsoever whensoever arising
and/or grant
security under the relevant Security Documents
and/or to
ensure the continuous validity and enforceability thereof;
“Required Security Amount” means the
amount in USD (as certified by the Agent) which is at any
relevant time the Relevant Percentage of the aggregate of the
Delivered Tranches and any Swap Exposure where “Relevant
Percentage” means:
(i) during 2010 and 2011, 80%;
(ii) during 2012, 100%;
(iii) during 2013, 110%
(iv) thereafter, 115%;
“Retention Account” an interest bearing
USD Account required to be opened hereunder with the relevant
Account Bank in the name of the Borrowers designated
“Navios — Retention Account” and includes
any other account designated in writing by the Agent to be the
Retention Account for the purposes of this Agreement;
“Retention Account Pledge” means a first
priority charge required to be executed hereunder between the
Borrowers and the Security Trustee in respect of the Retention
Account in such form as the Agent and the Majority Lenders may
require in their sole discretion;
“Retention Amount” means, in relation to
any Retention Date, such sum as shall be the aggregate of:
(a) one sixth (1/6th) of the repayment instalment in
respect of the relevant Tranche falling due for payment pursuant
to clause 4.1.1 (as the same may have been reduced by any
prepayment) on the next Repayment Date after the relevant
Retention Date in respect of that Tranche; and
(b) the applicable fraction (as hereinafter defined) of the
aggregate amount of interest falling due for payment in respect
of each part of the Loan during and at the end of each Interest
Period current at the relevant Retention Date and, for this
purpose, the expression “applicable fraction”
in relation to each Interest Period shall mean a fraction having
a numerator of one and a denominator equal to the number of
Retention Dates falling within the relevant Interest Period;
“Retention Dates” means the date falling
thirty (30) days after the final Drawdown Date in respect
of a Tranche and each of the dates falling at monthly intervals
after such date and prior to the Maturity Date in respect of
that Tranche;
“Security Documents” means this
Agreement, the Predelivery Security Assignments, the Deutscher
Rahmenvertrag, the Deutscher Rahmenvertrag Security Deed, the
Mortgages, the Corporate Guarantee, the General Assignments, the
Charter Assignments, the Earnings Account Pledges, the
Manager’s Undertakings, the Charter Insurance Assignments,
the Shares Pledges, the Negative Pledges, and any other
documents as may have been or shall from time to time after the
date of this Agreement be executed to guarantee
and/or to
govern
and/or
secure all or any part of the Loan, interest thereon and other
moneys from time to time owing by the Borrowers pursuant to this
Agreement
and/or the
Deutscher Rahmenvertrag (whether or not any such document also
secures moneys from time to time owing pursuant to any other
document or agreement);
“Security Party” means the Borrowers,
the Manager, the Corporate Guarantor, the Shareholder or any
other person who may at any time be a party to any of the
Security Documents (other than the Banks);
“Security Trustee” means Deutsche
Schiffsbank AG acting through its through its office at Xxxxxxx
00, X-00000, Xxxxxx, Xxxxxxx (or of such other address as may
last have been notified to the other parties to this Agreement
pursuant to clause 17.2.3) or such other person as may be
appointed as Security Trustee and trustee by the Lenders, the
Arranger, Account Banks, the Swap Bank and the Agent pursuant to
clause 16.14;
“Security Value” means the amount in USD
(as certified by the Agent) which is, at any relevant time, the
aggregate of (a) the Valuation Amounts of the Mortgaged
Vessels as most recently determined
in accordance with clause 8.2.2 and (b) the net
realizable market value of any additional security for the time
being actually provided to the Lenders pursuant to
clause 8.2.1(b) and (c) and cash (excluding amounts on
the Equity Deposit Accounts) over which there is an Encumbrance
as security for the obligations of the Borrowers under this
Agreement;
“Share Acquisition Date” means the date
on which Navios Acquisition acquires, directly or indirectly,
all of the shares of and in the Shareholder;
“Shareholder” means Aegean Sea Maritime
Holdings Inc., a company incorporated in the Xxxxxxxx Islands
and having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx,
XX00000;
“Shares Pledge” means the first priority
pledge of the shares of and in each Borrower to be executed by
the Shareholder in favour of the Security Trustee in such form
as the Agent and the Majority Lenders may require in their sole
discretion and in the plural means all of them;
“Ship Security Documents” means, in
relation to each Vessel, the relevant Mortgage, the relevant
General Assignment, any relevant Charter Assignment and the
relevant Manager’s Undertakings;
“Shipbuilding Contract” means each of
the Vessel A Shipbuilding Contract, the Vessel B Shipbuilding
Contract, the Vessel C Shipbuilding Contract, the Vessel D
Shipbuilding Contract, the Vessel E Shipbuilding Contract and
the Vessel F Shipbuilding Contract and in the plural means all
of them;
“Shipbuilding Contract Addendum” means,
in respect of each Shipbuilding Contract, an addendum thereto
pursuant to which the relevant Borrower and the Builder agree to
vary the terms of the relevant Shipbuilding Contract, including,
inter alia, a reduction of the purchase price;
“subsidiary” of a person means any
company or entity directly or indirectly controlled by such
person, and for this purpose “control” means either
the ownership of more than fifty per cent (50%) of the voting
share capital (or equivalent rights of ownership) of such
company or entity or the power to direct its policies and
management, whether by contract or otherwise;
“Swap Bank” means Deutsche Schiffsbank
AG acting through its through its office at Xxxxxxx 00, X-00000,
Xxxxxx, Xxxxxxx;
“Swap Exposure” means, as at any
relevant date the amount certified by the Swap Bank to be the
aggregate net amount in Dollars which would be payable by the
Borrowers to the Swap Bank under (and calculated in accordance
with) section 6(e) (Payments on Early Termination) of the
Deutscher Rahmenvertrag if an Early Termination Date (as therein
defined) had occurred on the relevant date in relation to all
continuing Transactions (as therein defined) entered into
between the Borrowers and the Swap Bank;
“Taxes” includes all present and future
income, corporation, capital or value-added taxes and all stamp
and other taxes and levies, imposts, deductions, duties, charges
and withholdings whatsoever together with interest thereon and
penalties in respect thereto, if any, and charges, fees or other
amounts made on or in respect thereof (and “Taxation”
shall be construed accordingly);
“Total Assets” and “Total
Liabilities” mean, respectively, the total assets
and total liabilities of the Group as evidenced at any relevant
time by the Latest Accounts, in which they shall have been
calculated by reference to the meanings assigned to them in
accordance with US GAAP provided that cash shall be deducted
from Total Assets and Total Liabilities;
“Total Commitment” means, at any
relevant time, the aggregate of the Commitments of all the
Lenders at such time (being the aggregate of the sums set out
opposite their names in schedule 1);
“Total Loss” means, in relation to each
Vessel:
(a) actual, constructive, compromised or arranged total
loss of such Vessel; or
(b) Compulsory Acquisition; or
(c) any hijacking, theft, condemnation, capture, seizure,
arrest, detention or confiscation of such Vessel not falling
within the definition of Compulsory Acquisition by any
Government Entity, or by persons allegedly acting or purporting
to act on behalf of any Government Entity, unless such Vessel be
released and restored to the relevant Owner within ninety
(90) days after such incident;
“Tranche A” means the amount of up
to USD25,000,000, being the aggregate of all of the Advances to
be made available by the Lender to the Borrowers to assist
Amorgos in its acquisition of Vessel A or, as the context
requires, the amount thereof outstanding from time to time;
“Tranche B” means the amount of up
to USD25,000,000, being the aggregate of all of the Advances to
be made available by the Lender to the Borrowers to assist
Andros in its acquisition of Vessel B or, as the context
requires, the amount thereof outstanding from time to time;
“Tranche C” means the amount of up
to USD25,000,000, being the aggregate of all of the Advances to
be made available by the Lender to the Borrowers to assist
Antiparos in its acquisition of Vessel C or, as the context
requires, the amount thereof outstanding from time to time;
“Tranche D” means the amount of up
to USD25,000,000, being the aggregate of all of the Advances to
be made available by the Lender to the Borrowers to assist
Ikaria in its acquisition of Vessel D or, as the context
requires, the amount thereof outstanding from time to time;
“Tranche E” means the amount of up
to USD25,000,000, being the aggregate of all of the Advances to
be made available by the Lender to the Borrowers to assist Kos
in its acquisition of Vessel E or, as the context requires, the
amount thereof outstanding from time to time;
“Tranche F” means the amount of up
to USD25,000,000, being the aggregate of all of the Advances to
be made available by the Lender to the Borrowers to assist
Mytilene in its acquisition of Vessel F or, as the context
requires, the amount thereof outstanding from time to time;
“Tranche” means any of Tranche A,
Tranche B, Tranche C, Tranche D, Tranche E
or Tranche F and in the plural means all of them;
“Transaction” means a Transaction as
defined in the Deutscher Rahmenvertrag;
“Transfer Certificate” means a
certificate in substantially the form set out in schedule 4;
“Transferee Lender” has the meaning
ascribed thereto in clause 15.3;
“Transferor Lender” has the meaning
ascribed thereto in clause 15.3;
“Trust Deed” means a trust deed in
the form, or substantially in the form, set out in
schedule 5;
“Trust Property” means (i) the
security, powers, rights, titles, benefits and interests (both
present and future) constituted by and conferred on the Banks or
any of them under or pursuant to the Security Documents
(including, without limitation, the benefit of all covenants,
undertakings, representations, warranties and obligations given,
made or undertaken to any Bank in the Security Documents),
(ii) all moneys, property and other assets paid or
transferred to or vested in any Bank (or anyone else on such
Bank’s behalf) or received or recovered by any Bank (or
anyone else on such Bank’s behalf) pursuant to, or in
connection with, any of the Security Documents whether from any
Security Party or any other person and (iii) all moneys,
investments, property and other assets at any time representing
or deriving from any of the foregoing, including all interest,
income and other sums at any time received or receivable by any
Bank (or anyone else on such Bank’s behalf) in respect of
the same (or any part thereof);
“Underlying Documents” means, together,
the Shipbuilding Contracts, the Shipbuilding Contract Addenda,
the Novation Agreements, the Refund Guarantees and the
Management Agreement;
“Unlawfulness” means any event or
circumstance which either is or, as the case may be, might in
the opinion of the Agent become the subject of a notification by
the Agent to the Borrowers under clause 12.1;
“USA” means the United States of America;
“Valuation Amount” means, in respect of
each Mortgaged Vessel, the value thereof as most recently
determined under clause 8.2.2; and
“Vessel” means each of Vessel A, Vessel
B, Vessel C, Vessel D, Vessel E and Vessel F and in the plural
means all of them.
Words and expressions defined in Schedule 7 (Vessel
Details) shall have the meanings given to them therein as if the
same were set out in full in this clause 1.2.
1.3 Construction
In this Agreement, unless the context otherwise requires:
1.3.1 clause headings and the index are inserted for
convenience of reference only and shall be ignored in the
construction of this Agreement;
1.3.2 references to clauses and schedules are to be
construed as references to clauses of, and schedules to, this
Agreement and references to this Agreement include its schedules
and any supplemental agreements executed pursuant hereto;
1.3.3 references to (or to any specified provision of) this
Agreement or any other document shall be construed as references
to this Agreement, that provision or that document as in force
for the time being and as duly amended
and/or
supplemented
and/or
novated;
1.3.4 references to a “regulation” include any
present or future regulation, rule, directive, requirement,
request or guideline (whether or not having the force of law) of
any Government Entity, central bank or any self-regulatory or
other supra-national authority;
1.3.5 references to any person in or party to this
Agreement shall include reference to such person’s lawful
successors and assigns and references to a Lender shall also
include a Transferee Lender;
1.3.6 words importing the plural shall include the singular
and vice versa;
1.3.7 references to a time of day are, unless otherwise
stated, to London time;
1.3.8 references to a person shall be construed as
references to an individual, firm, company, corporation or
unincorporated body of persons or any Government Entity;
1.3.9 references to a “guarantee” include
references to an indemnity or any other kind of assurance
whatsoever (including, without limitation, any kind of
negotiable instrument, xxxx or note) against financial loss or
other liability including, without limitation, an obligation to
purchase assets or services as a consequence of a default by any
other person to pay any Indebtedness and “guaranteed”
shall be construed accordingly;
1.3.10 references to any statute or other legislative
provision are to be construed as references to any such statute
or other legislative provision as the same may be re enacted or
modified or substituted by any subsequent statute or legislative
provision (whether before or after the date hereof) and shall
include any regulations, orders, instruments or other
subordinate legislation issued or made under such statute or
legislative provision;
1.3.11 a certificate by the Agent or the Security Trustee
as to any amount due or calculation made or any matter
whatsoever determined in connection with this Agreement shall be
conclusive and binding on the Borrowers except for manifest
error;
1.3.12 if any document, term or other matter or thing is
required to be approved, agreed or consented to by any of the
Banks such approval, agreement or consent must be obtained in
writing unless the contrary is stated;
1.3.13 time shall be of the essence in respect of all
obligations whatsoever of the Borrowers under this Agreement,
howsoever and whensoever arising;
1.3.14 and the words “other” and
“otherwise” shall not be construed eiusdem generis
with any foregoing words where a wider construction is possible.
1.4 Accounting
terms and references to currencies
Currencies are referred to in this Agreement by the three letter
currency codes (ISO 4217) allocated to them by the
International Organisation for Standardisation.
1.5 Contracts
(Rights of Third Parties Act) 1999
Except for clause 20, no part of this Agreement shall be
enforceable under the Contracts (Rights of Third Parties) Xxx
0000 by a person who is not a party to this Agreement.
1.6 Majority
Lenders
Where this Agreement or any other Security Document provides for
any matter to be determined by reference to the opinion of the
Majority Lenders or to be subject to the consent or request of
the Majority Lenders or for any decision or action to be taken
on the instructions in writing of the Majority Lenders, such
opinion, consent, request or instructions shall (as between the
Lenders) only be regarded as having been validly given or issued
by the Majority Lenders if all the Lenders with a Commitment
and/or
Contribution shall have received prior notice of the matter on
which such opinion, consent, request or instructions are
required to be obtained and the relevant majority of such
Lenders shall have given or issued such opinion, consent,
request or instructions but so that (as between the Borrowers
and the Banks) the Borrowers shall be entitled (and bound) to
assume that such notice shall have been duly received by each
relevant Lender and that the relevant majority shall have been
obtained to constitute Majority Lenders whether or not this is
in fact the case.
2 THE
AVAILABLE COMMITMENT AND CANCELLATION
2.1 Agreement
to lend
The Lenders, relying upon each of the representations and
warranties in clause 7, agree to provide to the Borrowers
upon and subject to the terms of this Agreement, the Tranches,
for the purposes of financing part of the purchase price of the
Vessels. Subject to the terms of this Agreement, the obligations
of the Lenders shall be to contribute to each Advance, the
proportion of the relevant Advance which their respective
Commitments bear to the Total Commitment on any relevant
Drawdown Date.
2.2 Obligations
several
The obligations of the Lenders under this Agreement are several
according to their respective Commitments
and/or
Contributions. The failure of any Lender to perform such
obligations shall not relieve any other party to this Agreement
of any of its respective obligations or liabilities under this
Agreement nor shall any Bank be responsible for the obligations
of any other Bank (except for its own obligations, if any, as a
Lender) under this Agreement.
2.3 Interests
several
Notwithstanding any other term of this Agreement (but without
prejudice to the provisions of this Agreement relating to or
requiring action by the Majority Lenders) the interests of the
Banks are several and the amount due to any Bank is a separate
and independent debt. Each Bank shall have the right to protect
and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Bank to be joined as an
additional party in any Proceedings for this purpose.
2.4 Drawdown
2.4.1 On the terms and subject to the conditions of this
Agreement, (i) Tranche A and Tranche B shall be
advanced in up to four (4) Advances each and
(ii) Tranche C, Tranche D, Tranche E and
Tranche F shall be
advanced in up to six (6) Advances each on the relevant
Drawdown Dates following receipt by the Agent from the Borrowers
of Drawdown Notices not later than 10 a.m. on the third
Banking Day before each proposed Drawdown Date.
2.4.2 A Drawdown Notice shall be effective on actual
receipt by the Agent and, once given, shall, subject as provided
in clause 3.6, be irrevocable.
2.5 Amount
2.5.1 The principal amount specified in each Drawdown
Notice for borrowing on the Drawdown Dates shall, subject to the
terms of this Agreement, in respect of Tranche A and
Tranche B not exceed:
(a) USD7,467,472 payable to the relevant seller or its
financiers under the relevant Novation Agreement;
(b) USD10,582,966 in respect of the instalment payable to
the Builder on the relevant Shipbuilding Contract Addendum
becoming effective;
(c) USD3,474,781 to the Builder under the relevant
Shipbuilding Contract in respect of the launching
instalment; and
(d) USD3,474,781 to the Builder under the relevant
Shipbuilding Contract in respect of the delivery instalment.
2.5.2 The principal amount specified in each Drawdown
Notice for borrowing on the Drawdown Dates shall, subject to the
terms of this Agreement, in respect of Tranche C,
Tranche D, Tranche E and Tranche F not exceed:
(a) USD6,023,472 payable to the relevant seller or its
financiers under the relevant Novation Agreement;
(b) USD9,154,103 in respect of the instalment payable to
the Builder on the relevant Shipbuilding Contract Addendum
becoming effective;
(c) USD2,455,607 to the Builder under the relevant
Shipbuilding Contract in respect of the steel-cutting instalment;
(d) USD2,455,607 to the Builder under the relevant
Shipbuilding Contract in respect of the keel-laying instalment;
(e) USD2,455,607 to the Builder under the relevant
Shipbuilding Contract in respect of the launching
instalment; and
(f) USD2,455,604 to the Builder under the relevant
Shipbuilding Contract in respect of the delivery instalment.
2.6 Availability
Upon receipt of a Drawdown Notice complying with the terms of
this Agreement, the Agent shall promptly notify each Lender and
each Lender shall make available to the Agent its portion of the
relevant Advance for payment by the Agent in accordance with
clause 6.2. The Borrowers acknowledge that payment of any
Advance to the account referred to in the relevant Drawdown
Notice shall satisfy the obligation of the Lenders to lend that
Advance to the Borrowers under this Agreement.
2.7 Voluntary
cancellation of Facility
The Borrowers may at any time during the Drawdown Period by
notice to the Agent (effective only on actual receipt) cancel
with effect from a date not less than five Banking Days after
the receipt by the Agent of such notice the whole or any part
(being two million five hundred thousand Dollars (USD 2,500,000)
or any larger sum which is an integral multiple of two million
five hundred thousand Dollars (USD 2,500,000)) of the
Total Commitment. Any such notice of cancellation, once given,
shall be irrevocable and the Total Commitment shall be reduced
accordingly and each Lender’s Commitment shall be reduced
pro rata according to the proportion which its Commitment bears
to the Total Commitment.
2.8 Cancellation
in changed circumstances
The Borrowers may also at any time during the Facility Period by
notice to the Agent (effective only on actual receipt) prepay
and cancel with effect from a date not less than fifteen
(15) days after receipt by the Agent of such notice, the
whole but not part only, but without prejudice to the
Borrowers’ obligations under clauses 6.6 and 12, of
the Contribution and Commitment (if any) of any Lender to which
the Borrowers shall have become obliged to pay additional
amounts under clause 12 or clause 6.6. Upon any notice
of such prepayment and cancellation being given, the Commitment
of the relevant Lender shall be reduced to zero, the Borrowers
shall be obliged to prepay the Contribution of such Lender and
such Lender’s related costs (including but not limited to
Break Costs) on such date and such Lender shall be under no
obligation to participate in the Loan or any further Advances.
2.9 Use
of proceeds
Without prejudice to the Borrowers’ obligations under
clause 8.1.4, no Bank shall have any responsibility for the
application of the proceeds of any Advance or any part thereof
by the Borrowers.
3 INTEREST
AND INTEREST PERIODS
3.1 Normal
interest rate
The Borrowers must pay interest on each Tranche in respect of
each Interest Period relating thereto on each Interest Payment
Date at the rate per annum determined by the Agent to be the
aggregate of (a) the Margin and (b) LIBOR.
3.2 Selection
of Interest Periods
Subject to clause 3.3, the Borrowers may by notice received
by the Agent not later than 10:00 a.m. on the fourth
Banking Day before the beginning of each Interest Period specify
whether such Interest Period shall have a duration of three (3),
six (6) or twelve (12) months or such other period as
the Borrowers may select and the Agent (acting on the
instructions of the Lenders) may agree, and if the Borrowers
wishes to specify an Interest Period of more than
12 months, it must give at least 5 Banking Days prior
notice thereof.
3.3 Determination
of Interest Periods
Subject to Clause 3.3.1 every Interest Period shall be of
the duration specified by the Borrowers pursuant to
clause 3.2 but so that:
3.3.1 the first Interest Period in respect of each Tranche
shall start on the Drawdown Date in respect of the first Advance
in respect of that Tranche, and each subsequent Interest Period
shall start on the last day of the previous Interest Period;
3.3.2 the first Interest Period in respect of each
subsequent Advance shall commence on its Drawdown Date and
terminate simultaneously with the Interest Period which is then
current for the Tranche under which the Advance is made
available;
3.3.3 if any Interest Period of a Tranche would otherwise
overrun a relevant Repayment Date, then the relevant Tranche
shall be divided into parts so that there is one part in the
amount of the repayment instalment due on such Repayment Date
and having an Interest Period ending on the relevant Repayment
Date and another part in the amount of the balance of that
Tranche having an Interest Period ascertained in accordance with
clause 3.2 and the other provisions of this
clause 3.3; and
3.3.4 if the Borrowers fail to specify the length of an
Interest Period in accordance with the provisions of
clause 3.2 and this clause 3.3 such Interest Period
shall last three months or such other period as complies with
this clause 3.3.
3.4 Default
interest
If the Borrowers fail to pay any sum (including, without
limitation, any sum payable pursuant to this clause 3.4) on
its due date for payment under any of the Security Documents,
the Borrowers must pay interest on such sum on demand from the
due date up to the date of actual payment (as well after as
before judgment) at a rate determined by the Agent pursuant to
this clause 3.4. The period starting on such due date and
ending on such date of payment shall be divided into successive
periods of not more than three (3) months as selected by
the Agent each of which (other than the first, which shall start
on such due date) shall start on the last day of the preceding
such period. The rate of interest applicable to each such period
shall be the aggregate (as determined by the Agent) of
(a) two per cent (2%) per annum, (b) the Margin
and (c) LIBOR for such periods. Such interest shall be due
and payable on demand, or, if no demand is made, then on the
last day of each such period as determined by the Agent and on
the day on which all amounts in respect of which interest is
being paid under this Clause are paid, and each such day shall,
for the purposes of this Agreement, be treated as an Interest
Payment Date, provided that if the relevant unpaid sum is
(i) an amount of principal which became due and payable by
reason of a declaration by the Agent under clause 10.2.2 or
(ii) a prepayment pursuant to clauses 4.3, 4.5,
8.2.1(a) or 12.1 on a date other than an Interest Payment Date
relating thereto, the first such period selected by the Agent
shall be of a duration equal to the period between the due date
of such principal sum and such Interest Payment Date and
interest shall be payable on such principal sum during such
period at a rate of two per cent (2%) above the rate
applicable thereto immediately before it shall have become so
due and payable. If, for the reasons specified in
clause 3.6.1, the Agent is unable to determine a rate in
accordance with the foregoing provisions of this
clause 3.4, each Lender shall promptly notify the Agent of
the cost of funds to such Lender and interest on any sum not
paid on its due date for payment shall be calculated at a rate
determined by the Agent to be two per cent (2%) per annum
above the aggregate of the Margin and the arithmetic mean of the
cost of funds to the Lenders compounded at such intervals as the
Agent selects.
3.5 Notification
of Interest Periods and interest rate
The Agent agrees to notify (i) the Lenders promptly of the
duration of each Interest Period and (ii) the Borrowers and
the Lenders promptly of each rate of interest determined by it
under this clause 3.
3.6 Market
disruption; non-availability
3.6.1 Whenever, at any time prior to the commencement of
any Interest Period:
(a) the Agent shall have determined that adequate and fair
means do not exist for ascertaining LIBOR during such Interest
Period; or
(b) the Agent shall have received notification from a
Lender or Lenders that deposits in USD are not available to such
Lender or Lenders in the London InterBank Market in the ordinary
course of business to fund their Contributions to the Loan for
such Interest Period the Agent must promptly give notice (a
“Determination Notice”) thereof to the
Borrowers and to each of the Lenders. A Determination Notice
shall contain particulars of the relevant circumstances giving
rise to its issue. After the giving of any Determination Notice,
regardless of any other provision of this Agreement, any undrawn
Commitment shall not be borrowed until notice to the contrary is
given to the Borrowers by the Agent.
3.6.2 Within two (2) days of any Determination Notice
being given by the Agent under clause 3.6.1, each Lender
must certify an alternative basis (the “Alternative
Basis”) for maintaining its Contribution. The
Alternative Basis may at the relevant Lender’s sole
discretion include (without limitation) alternative interest
periods, alternative currencies or alternative rates of interest
but shall include a Margin above the cost of funds to such
Lender. The Agent shall calculate the arithmetic mean of the
Alternative Bases provided by the relevant Lenders (the
“Substitute Basis”) and certify the same to the
Borrowers and the Lenders. The
Substitute Basis so certified shall be binding upon the
Borrowers, and shall take effect in accordance with its terms
from the date specified in the Determination Notice until such
time as the Agent notifies the Borrowers that none of the
circumstances specified in clause 3.6.1 continues to exist
whereupon the normal interest rate fixing provisions of this
Agreement shall again apply and, subject to the other provisions
of this Agreement, the Commitment may again be borrowed.
3.7 Interest
Rate Swaps
If the Borrowers wish to enter into any interest rate swaps in
respect of the Loan or any part thereof, they must, provided
that the Swap Bank is offering competitive rate and provided
that the Lenders agree, do so with the Swap Bank under the
Deutscher Rahmenvertrag.
4 REPAYMENT
AND PREPAYMENT
4.1 Repayment
4.1.1 Subject as otherwise provided in this Agreement, the
Borrowers must repay each Tranche by 12 equal semi-annual
instalments of USD750,000 each, one such instalment to be repaid
on each of the Repayment Dates and a balloon instalment of
USD16,000,000 to be repaid on the relevant final Repayment Date.
If the Commitment in respect of any Tranche is not drawn in
full, the amount of each repayment instalments including the
said balloon instalment for that Tranche shall be reduced
proportionately.
4.1.2 The Borrowers shall on the Maturity Date in respect
of the last Tranche to be repaid also pay to the Agent and the
Lenders all other amounts in respect of interest or otherwise
then due and payable under this Agreement and the Security
Documents.
4.2 Voluntary
prepayment
Subject to clauses 4.6 and 4.7 the Borrowers may, subject
to having given 15 Banking Days prior notice thereof to the
Agent, prepay any specified amount (such part being in an amount
of two million five hundred thousand Dollars (USD 2,500,000) or
any larger sum which is an integral multiple of such amount) of
any Tranche on any relevant Interest Payment Date without
premium or penalty.
4.3 Mandatory
Prepayment on Total Loss
On the date falling one hundred and eighty (180) days after
that on which a Mortgaged Vessel became a Total Loss or, if
earlier, on the date upon which the relevant insurance proceeds
are, or Requisition Compensation (as defined in the Mortgage for
such Vessel) is, received by the relevant Borrower (or the
Security Trustee pursuant to the Security Documents), the
Borrowers must prepay the Loan by an amount equal to the
greatest of (i) the Relevant Tranche, (ii) the amount
of the Loan on the date on which such prepayment is required to
be made multiplied by the Prepayment Ratio and (iii) such
amount as would be required to ensure that the Security Value
after such prepayment exceeds the Required Security Amount.
4.3.1 Interpretation
For the purpose of this Agreement, a Total Loss shall be deemed
to have occurred:
(a) in the case of an actual total loss of a Vessel, on the
actual date and at the time such Vessel was lost or, if such
date is not known, on the date on which such Vessel was last
reported;
(b) in the case of a constructive total loss of a Vessel,
upon the date and at the time notice of abandonment of the ship
is given to the then insurers of such Vessel (provided a claim
for total loss is admitted by such insurers) or, if such
insurers do not immediately admit such a claim, at the date and
at the time at which either a total loss is subsequently
admitted by such insurers or a total loss is subsequently
adjudged by a competent court of law or arbitration tribunal to
have occurred;
(c) in the case of a compromised or arranged total loss of
a Vessel, on the date upon which a binding agreement as to such
compromised or arranged total loss has been entered into by the
then insurers of such Vessel;
(d) in the case of Compulsory Acquisition, on the date upon
which the relevant requisition of title or other compulsory
acquisition occurs; and
(e) in the case of hijacking, theft, condemnation, capture,
seizure, arrest, detention or confiscation of a Vessel (other
than within the definition of Compulsory Acquisition) by any
Government Entity, or by persons allegedly acting or purporting
to act on behalf of any Government Entity, which deprives an
Owner of the use of such Vessel for more than thirty
(30) days, upon the expiry of the period of thirty
(30) days after the date upon which the relevant incident
occurred.
4.4 Mandatory
prepayment on sale of Mortgaged Vessel
On the date of completion of the sale of a Mortgaged Vessel the
Borrowers must prepay the Loan by an amount equal to the
greatest of (i) the Relevant Tranche, (ii) the amount
of the Loan on the date on which such prepayment is required to
be made multiplied by the Prepayment Ratio and (iii) such
amount as would be required to ensure that the Security Value
after such prepayment exceeds the Required Security Amount.
4.5 Mandatory
prepayment on termination of a Shipbuilding
Contract
If a Shipbuilding Contract is terminated, cancelled, revoked,
suspended, rescinded, transferred, novated or otherwise ceases
to remain in full force and effect for any reason except with
the consent of the Agent, the Borrowers must upon the
Agent’s demand prepay the Tranche financing the relevant
Borrower’s obligations under that Shipbuilding Contract and
the Commitment in respect of such Tranche shall be irrevocably
cancelled upon such demand being made.
4.6 Amounts
payable on prepayment
Any prepayment of all or part of the Loan under this Agreement
shall be made together with:
4.6.1 accrued interest on the amount to be prepaid to the
date of such prepayment;
4.6.2 any additional amount payable under clauses 3.6,
6.6 or 12.2; and
4.6.3 all other sums payable by the Borrowers to the Banks
under this Agreement or any of the other Security Documents
including, without limitation any Break Costs and, if the whole
Loan is being prepaid, any accrued commitment commission payable
under clause 5.1.
4.7 Notice
of prepayment; reduction of maximum loan amount
4.7.1 Every notice of prepayment shall be effective only on
actual receipt by the Agent, shall be irrevocable, shall specify
the amount to be prepaid and the Tranche which is to be prepaid
and shall oblige the Borrowers to make such prepayment on the
date specified. Subject to the other provisions of this
Agreement and in particular Clause 2.6, no amount prepaid
under this Clause 4 in respect of the Loan may be
reborrowed.
4.7.2 Any amounts prepaid pursuant to clause 4.2 shall
be applied against the relevant Tranche in reducing the Balloon
Instalment and other outstanding repayment instalments pro rata.
4.7.3 Any amounts prepaid pursuant to clauses 4.3, 4.4
or 4.5 shall be applied against the Relevant Tranche and
thereafter against the Loan pro rata against the remaining
Tranches in accordance with clause 4.7.2.
4.7.4 The Borrowers’ obligations set out in
Clause 4.1.1 shall not be affected by any prepayment in
respect of the Loan pursuant to clause 4.2.
4.7.5 The Borrowers may not prepay any part of the Loan
except as expressly provided in this Agreement.
5 FEES
AND EXPENSES
5.1 Commission
5.1.1 The Borrowers agree to pay to the Agent for the
account of the Lenders pro rata in accordance with their
Commitments quarterly in arrears from the Execution Date until
the end of the Drawdown Period and on the last day of the
Drawdown Period commitment commission computed from the
Execution Date at a rate of zero point six per cent (0.60%) per
annum on the daily amount of the undrawn Loan Facility.
5.1.2 The commission referred to in clause 5.1.1 must be
paid by the Borrowers to the Agent, whether or not any part of
the Total Commitment is ever advanced and shall be
non-refundable.
5.2 Arrangement
Fee
The Borrowers shall pay to the Agent on the first Drawdown Date
an arrangement fee of USD1,125,000 for the account of the
Lenders pro rata in accordance with their Commitments.
5.3 Expenses
The Borrowers agree to reimburse the Banks on a full indemnity
basis within ten (10) days of demand all expenses
and/or
disbursements whatsoever (including without limitation legal,
printing, travel and out of pocket expenses and expenses related
to the provision of legal and insurance opinions referred to in
schedule 3) certified by the Banks or any of them as
having been incurred by them from time to time:
5.3.1 in connection howsoever with the syndication of the
Loan Facility and with the negotiation, preparation, execution
and, where relevant, registration of the Security Documents and
of any contemplated or actual amendment, or indulgence or the
granting of any waiver or consent howsoever in connection with,
any of the Security Documents (including legal fees and any
travel expenses); and
5.3.2 in contemplation or furtherance of, or otherwise
howsoever in connection with, the exercise or enforcement of, or
preservation of any rights, powers, remedies or discretions
under any of the Security Documents, or in consideration of the
Banks’ rights thereunder or any action proposed or taken
following the occurrence of a Default or otherwise in respect of
the moneys owing under any of the Security Documents, together
with interest at the rate referred to in clause 3.4 from
the date on which reimbursement of such expenses
and/or
disbursements were due following demand to the date of payment
(as well after as before judgment).
5.4 Value
added tax
All fees and expenses payable pursuant to this Agreement must be
paid together with value added tax or any similar tax (if any)
properly chargeable thereon in any jurisdiction. Any value added
tax chargeable in respect of any services supplied by the Banks
or any of them under this Agreement shall, on delivery of the
value added tax invoice, be paid in addition to any sum agreed
to be paid hereunder.
5.5 Stamp
and other duties
The Borrowers must pay all stamp, documentary, registration or
other like duties or taxes (including any duties or taxes
payable by any of the Banks) imposed on or in connection with
any of the Underlying Documents, the Security Documents or the
Loan or any Advance and agree to indemnify the Banks or any of
them against any liability arising by reason of any delay or
omission by the Borrowers to pay such duties or taxes.
6 PAYMENTS
AND TAXES; ACCOUNTS AND CALCULATIONS
6.1 No
set-off or counterclaim
All payments to be made by the Borrowers under any of the
Security Documents must be made in full, without any set off or
counterclaim whatsoever and, subject as provided in
clause 6.6, free and clear of any
deductions or withholdings, in USD on or before 11:00 am on the
due date in freely available funds to such account at such bank
and in such place as the Agent may from time to time specify for
this purpose. Save as otherwise provided in this Agreement or
any other relevant Security Documents, such payments shall be
for the account of all Lenders and the Agent shall distribute
such payments in like funds as are received by the Agent to the
Lenders rateably, in the proportions which their respective
Contributions bear to the aggregate of the Loan and the Advances
on the date on which such payment is made.
6.2 Payment
by the Lenders
All sums to be advanced by the Lenders to the Borrowers under
this Agreement shall be remitted in USD on the relevant Drawdown
Date to the account of the Agent at such bank as the Agent may
have notified to the Lenders and shall be paid by the Agent on
such date in like funds as are received by the Agent to the
account specified in the relevant Drawdown Notice.
6.3 Non-Banking
Days
When any payment under any of the Security Documents would
otherwise be due on a day which is not a Banking Day, the due
date for payment shall be extended to the next following Banking
Day unless such Banking Day falls in the next calendar month in
which case payment shall be made on the immediately preceding
Banking Day.
6.4 Calculations
All interest and other payments of an annual nature under any of
the Security Documents shall accrue from day to day and be
calculated on the basis of actual days elapsed and a three
hundred and sixty (360) day year.
6.5 Currency
of account
If any sum due from the Borrowers under any of the Security
Documents, or under any order or judgment given or made in
relation thereto, must be converted from the currency (“the
first currency”) in which the same is payable thereunder
into another currency (“the second currency”) for the
purpose of (i) making or filing a claim or proof against
the Borrowers, (ii) obtaining an order or judgment in any
court or other tribunal or (iii) enforcing any order or
judgment given or made in relation thereto, the Borrowers
undertake to indemnify and hold harmless the Lender from and
against any loss suffered as a result of any discrepancy between
(a) the rate of exchange used for such purpose to convert
the sum in question from the first currency into the second
currency and (b) the rate or rates of exchange at which the
Lender may in the ordinary course of business purchase the first
currency with the second currency upon receipt of a sum paid to
it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. Any amount due from the Borrowers
under this clause 6.5 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other
sums due under or in respect of any of the Security Documents
and the term “rate of exchange” includes any premium
and costs of exchange payable in connection with the purchase of
the first currency with the second currency.
6.6 Grossing-up
for Taxes — by the Borrowers
If at any time the Borrowers must make any deduction or
withholding in respect of Taxes or deduction in respect of any
royalty payment, duty, assessment or other charge or otherwise
from any payment due under any of the Security Documents for the
account of any Bank or if the Agent or the Security Trustee must
make any deduction or withholding from a payment to another Bank
or withholding in respect of Taxes from any payment due under
any of the Security Documents, the sum due from the Borrowers in
respect of such payment must be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, the relevant Bank receives on the due date for such
payment (and retains, free from any liability in respect of such
deduction or withholding), a net sum equal to the sum which it
would have received had no such deduction or withholding been
required to be made and the Borrowers must indemnify each Bank
against
any losses or costs incurred by it by reason of any failure of
the Borrowers to make any such deduction or withholding or by
reason of any increased payment not being made on the due date
for such payment Provided however that if any Bank or the Agent
or the Security Trustee shall be or become entitled to any Tax
credit or relief in respect of any Tax which is deducted from
any payment by the Borrowers and it actually receives a benefit
from such Tax credit or relief in its country of domicile,
incorporation or residence, the relevant Bank or the Agent or
the Security Trustee, as the case may be, shall, subject to any
laws or regulations applicable thereto, pay to the Borrowers
after such benefit is effectively received by the relevant Bank
or the Agent or the Security Trustee, as the case may be, such
amounts (which shall be conclusively certified by the Agent) as
shall ensure that the net amount actually retained by the
relevant Bank or the Agent or the Security Trustee, as the case
may be, is equal to the amount which would have been retained if
there had been no such deduction provided that
(i) nothing in this Clause shall prevent the Banks from
arranging their respective tax affairs in whichever manner they
deem suitable, (ii) the declaration by any Bank of a rebate
shall be conclusive and binding and (iii) no Bank shall be
required to disclose its tax affairs to the Borrowers. The
Borrowers must promptly deliver to the Agent any receipts,
certificates or other proof evidencing the amounts (if any) paid
or payable in respect of any deduction or withholding as
aforesaid.
6.7 Grossing-up
for Taxes — by the Lenders
If at any time a Lender must make any deduction or withholding
in respect of Taxes from any payment due under any of the
Security Documents for the account of the Agent or the Security
Trustee, the sum due from such Lender in respect of such payment
must be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the Agent or, as
the case may be, the Security Trustee receives on the due date
for such payment (and retains free from any liability in respect
of such deduction or withholding) a net sum equal to the sum
which it would have received had no such deduction or
withholding been required to be made and each Lender must
indemnify the Agent and the Security Trustee against any losses
or costs incurred by it by reason of any failure of such Lender
to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such
payment.
6.8 Loan
account
Each Lender shall maintain, in accordance with its usual
practice, an account evidencing the amounts from time to time
lent by, owing to and paid to it under the Security Documents.
The Agent
and/or the
Security Trustee shall maintain a control account showing the
Loan, the Advances and other sums owing by the Borrowers under
the Security Documents and all payments in respect thereof being
made from time to time. The control account shall, in the
absence of manifest error, be prima facie evidence of the amount
from time to time owing by the Borrowers under the Security
Documents.
6.9 Agent
may assume receipt
Where any sum is to be paid under the Security Documents to the
Agent or, as the case may be, the Security Trustee for the
account of another person, the Agent or, as the case may be, the
Security Trustee may assume that the payment will be made when
due and the Agent or, as the case may be, the Security Trustee
may (but shall not be obliged to) make such sum available to the
person so entitled. If it proves to be the case that such
payment was not made to the Agent or, as the case may be, the
Security Trustee, then the person to whom such sum was so made
available must on request refund such sum to the Agent or, as
the case may be, the Security Trustee together with interest
thereon sufficient to compensate the Agent or, as the case may
be, the Security Trustee for the cost of making available such
sum up to the date of such repayment and the person by whom such
sum was payable must indemnify the Agent or, as the case may be,
the Security Trustee for any and all loss or expense which the
Agent or, as the case may be, the Security Trustee may sustain
or incur as a consequence of such sum not having been paid on
its due date.
6.10 Partial
payments
If, on any date on which a payment is due to be made by the
Borrowers under any of the Security Documents, the amount
received by the Agent from the Borrowers falls short of the
total amount of the
payment due to be made by the Borrowers on such date then,
without prejudice to any rights or remedies available to the
Agent, the Security Trustee, the Security Trustee and the
Lenders under any of the Security Documents, the Agent must
apply the amount actually received from the Borrowers in or
towards discharge of the obligations of the Borrowers under the
Security Documents in the following order, notwithstanding any
appropriation made, or purported to be made, by the Borrowers:
6.10.1 first, in or towards payment, on a pro-rata basis,
of any unpaid costs and expenses of the Agent and the Security
Trustee under any of the Security Documents;
6.10.2 secondly, in or towards payment of any fees payable
to the Arranger, the Agent or any of the other Banks under, or
in relation to, the Security Documents which remain unpaid;
6.10.3 thirdly, in or towards payment to the Lenders, on a
pro rata basis, of any accrued interest owing in respect of the
Loan which shall have become due under any of the Security
Documents but remains unpaid;
6.10.4 fourthly, in or towards repayment of the Loan which
have become due and payable and in or towards payment to the
Swap Bank of any sum which shall have become due under the
Deutscher Rahmenvertrag but remains unpaid;
6.10.5 fifthly, in or towards payment to the Lenders, on a
pro rata basis, of any Break Costs and any other sum relating to
the Loan which shall have become due under any of the Security
Documents but remains unpaid; and
The order of application set out in clauses 6.10.1 to
6.10.5 may be varied by the Agent if the Majority Lenders so
direct, without any reference to, or consent or approval from,
the Borrowers.
7 REPRESENTATIONS
AND WARRANTIES
7.1 Continuing
representations and warranties
The Borrowers represent and warrant to each Bank that:
7.1.1 Due incorporation
each of the Security Parties is duly incorporated and validly
existing in good standing, under the laws of its respective
country of incorporation, in each case, as a corporation and has
power to carry on its respective businesses as it is now being
conducted and to own their respective property and other assets
to which it has unencumbered legal and beneficial title except
as disclosed to the Agent in writing;
7.1.2 Corporate power
each of the Security Parties has power to execute, deliver and
perform its obligations and, as the case may be, to exercise its
rights under the Underlying Documents and the Security Documents
to which it is a party; all necessary corporate, shareholder and
other action has been taken to authorise the execution, delivery
and on the execution of the Security Documents performance of
the same and no limitation on the powers of the Borrowers to
borrow or any other Security Party to howsoever incur liability
and/or to
provide or grant security will be exceeded as a result of
borrowing any part of the Loan;
7.1.3 Binding obligations
the Underlying Documents and the Security Documents, when
executed, will constitute valid and legally binding obligations
of the relevant Security Parties enforceable in accordance with
their respective terms;
7.1.4 No conflict with other obligations
the execution and delivery of, the performance of their
obligations under, and compliance with the provisions of, the
Underlying Documents and the Security Documents by the relevant
Security Parties will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment,
decree or permit to which any Security Party or other member of
the Group is subject, (ii) conflict with, or result in any
breach of any of the terms of, or constitute a default under,
any agreement or other instrument to which any Security Party or
any other member of the Group is a party or is subject or by
which it or any of its property is bound,
(iii) contravene or conflict with any provision of the
constitutional documents of any Security Party or
(iv) result in the creation or imposition of, or oblige any
of the Security Parties to create, any Encumbrance (other than a
Permitted Encumbrance) on any of the undertakings, assets,
rights or revenues of any of the Security Parties;
7.1.5 No default
no Default has occurred;
7.1.6 No litigation or judgments
no Proceedings are current, pending or, to the knowledge of the
officers of any Borrower, threatened against any of the Security
Parties or any other Group Members or their assets which could
have a Material Adverse Effect and there exist no judgments,
orders, injunctions which would materially affect the
obligations of the Security Parties under the Security Documents;
7.1.7 No filings required
except for the registration of the Mortgages in the relevant
register under the laws of the relevant Flag State through the
relevant Registry, it is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of any of
the Underlying Documents or any of the Security Documents that
they or any other instrument be notarised, filed, recorded,
registered or enrolled in any court, public office or elsewhere
in any Pertinent Jurisdiction or that any stamp, registration or
similar tax or charge be paid in any Pertinent Jurisdiction on
or in relation to any of the Underlying Documents or the
Security Documents and each of the Underlying Documents and the
Security Documents is in proper form for its enforcement in the
courts of each Pertinent Jurisdiction;
7.1.8 Required Authorisations and legal compliance
all Required Authorisations have been obtained or effected and
are in full force and effect and no Security Party has in any
way contravened any applicable law, statute, rule or regulation
(including all such as relate to money laundering);
7.1.9 Choice of law
the choice of English law to govern the Underlying Documents and
the Security Documents (other than the Mortgages and the
Earnings Account Pledges, the Retention Account Pledge, the
Alpha Equity Deposit Account Pledge and the DSB Equity Deposit
Account Pledge), the choice of the law of the Flag State to
govern the Mortgages, the choice of Greek law to govern the
Earnings Account Pledges, the Alpha Equity Deposit Account
Pledge and the Retention Account Pledge, the choice of German
law to govern the DSB Equity Deposit Account Pledge and the
submissions by the Security Parties to the jurisdiction of the
English courts and the obligations of such Security Parties
associated therewith, are valid and binding;
7.1.10 No immunity
no Security Party nor any of their assets is entitled to
immunity on the grounds of sovereignty or otherwise from any
Proceedings whatsoever;
7.1.11 Financial statements correct and complete
the latest audited and unaudited consolidated financial
statements of the Corporate Guarantor in respect of the relevant
financial year as delivered to the Agent present or will present
fairly and accurately the financial position of the Corporate
Guarantor and the consolidated financial position of the Group
as at the date thereof and the results of the operations of the
Corporate Guarantor and the consolidated results of the
operations of the Group for the financial year ended on such
date and, as at such date, neither the Corporate Guarantor nor
any of its subsidiaries have any significant liabilities
(contingent or otherwise) or any unrealised or anticipated
losses which are not disclosed by, or reserved against or
provided for in, such financial statements;
7.1.12 Pari passu
the obligations of the Borrowers under this Agreement are
direct, general and unconditional obligations of the Borrowers
and rank at least pari passu with all other present and future
unsecured and unsubordinated Indebtedness of the Borrowers
except for obligations which are mandatorily preferred by
operation of law and not by contract;
7.1.13 Information/ Material Adverse Effect
all information, whatsoever provided by any Security Party to
the Agent in connection with the negotiation and preparation of
the Security Documents or otherwise provided hereafter in
relation to, or pursuant to this Agreement is, or will be, true
and accurate in all material respects and not misleading, does
or will not omit material facts and all reasonable enquiries
have been, or shall have been, made to verify the facts and
statements contained therein and there has not occurred any
event which could have a Material Adverse Effect on any Security
Party since such information was provided to the Agent; there
are, or will be, no other facts the omission of which would make
any fact or statement therein misleading;
7.1.14 No withholding Taxes
no Taxes anywhere are imposed whatsoever by withholding or
otherwise on any payment to be made by any Security Party under
the Underlying Documents or the Security Documents to which such
Security Party is or is to be a party or are imposed on or by
virtue of the execution or delivery by the Security Parties of
the Underlying Documents or the Security Documents or any other
document or instrument to be executed or delivered under any of
the Security Documents;
7.1.15 Use of proceeds
the Borrowers shall apply the Loan only for the purposes
specified in clauses 1.1 and 2.1;
7.1.16 The Mortgaged Vessels
throughout the Facility Period, each Mortgaged Vessel will,
following its Delivery Date, be:
(a) in the absolute sole, legal and beneficial ownership of
the relevant Owner;
(b) registered through the offices of the relevant Registry
as a ship under the laws and flag of the relevant Flag State;
(c) in compliance with the ISM Code and the ISPS Code and
operationally seaworthy and in every way fit for service;
(d) in good and sea-worthy and cargo-worthy
condition; and
(e) classed with the relevant Classification free of all
requirements and recommendations of the relevant Classification
Society.
7.1.17 Mortgaged Vessels’ employment
Except with the prior written consent of the Lenders there will
not be any agreement or arrangement in respect of the employment
of any Mortgaged Vessel whereby the Earnings (as defined in the
relevant Ship Security Documents) of any Mortgaged Vessel may be
shared howsoever with any other person provided that no such
consent shall be required if (i) the aggregate Earnings of
the Mortgaged Vessels are sufficient to cover the aggregate of
the Borrowers’ payment obligations under this Agreement and
vessel operating expenses as they fall due and (ii) no
Event of Default has occurred which is continuing;
7.1.18 Freedom from Encumbrances
no Mortgaged Vessel nor its Earnings, Insurances or Requisition
Compensation (each as defined in the relevant Ship Security
Documents) nor the Earnings Accounts, Retention Account, Equity
Deposit Accounts nor any Extended Employment Contract in respect
of such Mortgaged Vessel nor any other properties or rights
which are, or are to be, the subject of any of the Security
Documents nor any part thereof will be subject to any
Encumbrance except Permitted Encumbrances;
7.1.19 Environmental Matters
except as may already have been disclosed by the Borrowers in
writing to, and acknowledged and accepted in writing by, the
Agent:
(a) the Borrowers and, to the best of the Borrowers’
knowledge and belief (having made due enquiry), their respective
Environmental Affiliates, have complied with the provisions of
all Environmental Laws;
(b) the Borrowers and, to the best of the Borrowers’
knowledge and belief (having made due enquiry), their respective
Environmental Affiliates have obtained all Environmental
Approvals and are in compliance with all such Environmental
Approvals;
(c) no Environmental Claim has been made or threatened or
pending against any Borrower, or, to the best of the
Borrowers’ knowledge and belief (having made due enquiry),
any of their respective Environmental Affiliates; and
(d) there has been no Environmental Incident;
7.1.20 ISM and ISPS Code
With effect from the Delivery Date of its Vessel, each of the
Borrowers will comply with and continue to comply with and
procure that the Manager complies with and continues to comply
with the ISM Code, the ISPS Code and all other statutory and
other requirements relative to its business and in particular
each Borrower or the Manager will obtain and maintain a valid
DOC and SMC for each Mortgaged Vessels and that it and the
Manager will implement and continue to implement an ISM SMS;
7.1.21 Copies true and complete
the Certified Copies or originals of the Underlying Documents
delivered or to be delivered to the Agent pursuant to
clause 8.1 are, or will when delivered be, true and
complete copies or, as the case may be, originals of such
documents; and such documents constitute valid and binding
obligations of the parties thereto enforceable in accordance
with their respective terms and there have been no amendments or
variations thereof or defaults thereunder;
7.1.22 the Borrowers are the ultimate beneficiaries of the
Loan;
7.1.23 no Security Party has incurred any Indebtedness save
under this Agreement or as otherwise disclosed to the Agent in
writing or as disclosed in the Group’s public filings;
7.1.24 the Corporate Guarantor and all Borrowers have filed
all tax and other fiscal returns required to be filed by any tax
authority to which they are subject;
7.1.25 no Borrower has an office in England.
7.2 Repetition
of representations and warranties
On each day throughout the Facility Period, the Borrowers shall
be deemed to repeat the representations and warranties in
clause 7 updated mutatis mutandis as if made with reference
to the facts and circumstances existing on such day.
8 UNDERTAKINGS
8.1 General
The Borrowers undertake with each Bank that, from the Execution
Date until the end of the Facility Period, they will:
8.1.1 Notice of Default and Proceedings
promptly inform the Agent of (a) any Default and of any
other circumstances or occurrence which might adversely affect
the ability of any Security Party to perform its obligations
under any of the Security Documents
and (b) as soon as the same is instituted or threatened,
details of any Proceedings involving any Security Party which
could have a material adverse effect on that Security Party
and/or the
operation of any of the Vessels (including, but not limited to
any Total Loss of a Vessel or the occurrence of any
Environmental Incident) and will from time to time, if so
requested by the Agent, confirm to the Agent in writing that,
save as otherwise stated in such confirmation, no Default has
occurred and is continuing and no such Proceedings are on foot
or threatened;
8.1.2 Authorisation
obtain or cause to be obtained, maintain in full force and
effect and comply fully with all Required Authorisations,
provide the Agent with Certified Copies of the same and do, or
cause to be done, all other acts and things which may from time
to time be necessary or desirable under any applicable law
(whether or not in the Pertinent Jurisdiction) for the continued
due performance of all the obligations of the Security Parties
under each of the Security Documents;
8.1.3 Corporate Existence/Ownership
ensure that each Security Party maintains its corporate
existence as a body corporate duly organised and validly
existing and in good standing under the laws of the Pertinent
Jurisdiction and ensure that each Borrower is owned, directly or
through other companies, by the Corporate Guarantor for the time
being;
8.1.4 Use of proceeds
use the Advances exclusively for the purposes specified in
clauses 1.1 and 2.1;
8.1.5 Pari passu
ensure that their obligations under this Agreement shall at all
times rank at least pari passu with all their other present and
future unsecured and unsubordinated Indebtedness with the
exception of any obligations which are mandatorily preferred by
law and not by contract;
8.1.6 Financial statements
send to the Agent (or procure that is sent):
(a) as soon as possible, but in no event later than
180 days after the end of each of its Financial Years,
annual audited (prepared in accordance with US GAAP by a firm of
accountants acceptable to the Agent) consolidated balance sheet
and profit and loss accounts of the Corporate Guarantor and all
companies which are owned, directly or indirectly, or controlled
by it (commencing with the Financial Year ending
31 December 2010); and
(b) as soon as possible, but in no event later than
75 days after the end of each 3 month period in each
of its Financial Years, the Corporate Guarantor’s unaudited
consolidated balance sheet and profit and loss accounts for that
3 month period certified as to their correctness by its
chief financial officer.
8.1.7 Reimbursement of MII & MAP Policy premiums
Whether or not any amount is borrowed under this Agreement,
reimburse the Agent on the Agent’s written demand the
amount of the premium payable by the Agent for the inception or,
as the case may be, extension
and/or
continuance of the MII & MAP Policy (including any
insurance tax thereon);
8.1.8 Compliance Certificates
deliver to the Agent on the earlier of (i) the date on
which the quarterly reports are delivered under
clause 8.1.6 and (ii) the date falling 75 days
after the end of the financial quarter to which they refer, a
Compliance Certificate together with such supporting information
as the Agent may require.
8.1.9 Provision of further information
provide the Agent, and procure that the Corporate Guarantor
provide the Agent, with such financial or other information
concerning any Borrower and their respective affairs,
activities, financial standing, Indebtedness and operations and
the performance of the Mortgaged Vessels as the Agent or any
Lender (acting through the Agent) may from time to time
reasonably require and all other documentation and information
as
any Lender may from time to time require in order to comply with
its, and all other relevant, know-your-customer regulations;
8.1.10 Obligations under Security Documents
duly and punctually perform each of the obligations expressed to
be imposed or assumed by them under the Security Documents and
Underlying Documents and will procure that each of the other
Security Parties will, duly and punctually perform each of the
obligations expressed to be assumed by it under the Security
Documents and the Underlying Documents to which it is a party;
8.1.11 Compliance with ISM Code
comply with, and will procure that any Operator will comply
with, and ensure that the Mortgaged Vessels and any Operator
comply with the requirements of the ISM Code, including (but not
limited to) the maintenance and renewal of valid certificates
pursuant thereto throughout the Security Period (as defined in
the Mortgages);
8.1.12 Withdrawal of DOC and SMC
immediately inform the Agent if there is any actual withdrawal
of their or any Operator’s DOC or the SMC of any Mortgaged
Vessel;
8.1.13 Issuance of DOC and SMC
and will procure that any Operator will promptly inform the
Agent of the receipt by any Borrower or any Operator of
notification that its application for a DOC or any application
for an SMC for any Mortgaged Vessel has been refused;
8.1.14 ISPS Code Compliance
and will procure that the Manager or any Operator will:
(a) maintain at all times a valid and current ISSC in
respect of each Mortgaged Vessel;
(b) immediately notify the Agent in writing of any actual
or threatened withdrawal, suspension, cancellation or
modification of the ISSC in respect of a Mortgaged
Vessel; and
(c) procure that each Mortgaged Vessel will comply at all
times with the ISPS Code;
8.1.15 Compliance with Laws and payment of taxes
and will comply with all relevant Environmental Laws, laws,
statutes and regulations and pay all taxes for which it is
liable as they fall due;
8.1.16 Charters etc.
(i) deliver to the Agent a Certified Copy of each Extended
Employment Contract upon its execution, (ii) forthwith on
the Agent’s request execute (a) a Charter Assignment
in respect thereof and (b) any notice of assignment
required in connection therewith and use reasonable efforts to
procure the acknowledgement of any such notice of assignment by
the relevant charterer (provided that any failure to procure the
same shall not constitute an Event of Default) and
(iii) pay all legal and other costs incurred by the Agent
in connection with any such Charter Assignments, forthwith
following the Agent’s demand.
8.1.17 Financial Covenants of the Corporate
Guarantor’s Group
procure that
(a) at no time shall the Liquidity of the Group be less
than the Minimum Liquidity;
(b) as of the earlier of (i) the Final Delivery Date
and (ii) 1 January 2013, the Net Worth of the Group
will at all times exceed USD75,000,000;
(c) as of the earlier of (i) the Final Delivery Date
and (ii) 1 January 2013, the Total Liabilities divided
by the Total Assets (adjusted for market values of vessels
calculated in accordance with Clause 8.2.2) shall be less
than 75%.
8.1.18 Inspection
the Agent, at the cost of the Borrowers and upon receipt of at
least 15 days written notice, by surveyors or other persons
appointed by it for such purpose, to board any Mortgaged Vessel
at all other reasonable times for the purpose of inspecting her
and to afford all proper facilities for such inspections and for
this purpose to give the Agent reasonable advance notice of any
intended drydocking of each Vessel (whether for the purpose of
classification, survey or otherwise) and to pay the costs in
respect of one inspection in each calendar year; and
8.1.19 Delivery
Pay to the Builder all amounts payable on delivery of the
Vessels in accordance with the relevant Shipbuilding Contract
and take, or as the case may be, ensure that the relevant
Borrower, takes delivery of the relevant Vessel.
8.1.20 Subordination
Ensure that all Indebtedness of any Borrower to its shareholders
or to any other Group Member is fully subordinated, and to
subordinate any Indebtedness issued to it by the Corporate
Guarantor, all in a form acceptable to the Agent (acting on the
instructions of the Majority Lenders).
8.1.21 Dividends
The Borrowers and Corporate Guarantor may declare or pay
dividends or distribute any of their present or future assets,
undertakings, rights or revenues in an amount not exceeding 50%
of the Net Profits for any relevant financial year to any of
their partners, members or shareholders, and the Corporate
Guarantor may make such other investments as it may require,
only if there has not occurred any Event of Default.
8.1.22 Corporate Guarantee
On the Share Acquisition Date the Borrowers shall procure the
delivery to the Security Trustee of:
(a) the Corporate Guarantee duly executed by Navios
Acquisition (and upon receipt thereof by the Security Trustee
the Corporate Guarantee which was executed on the first Drawdown
Date shall terminate and cease to be enforceable, which the
Security Trustee shall confirm in writing at that time) ;
(b) such documentation equivalent to that set out in
Schedule 3 Part A items (a)-(d) inclusive in respect
of Navios Acquisition as the Agent may require;
(c) within 10 Banking Days of the Share Acquisition Date,
the opening balance sheet of Navios Acquisition duly audited by
a firm of accountants acceptable the Lenders;
(d) a copy of the presentation given to the investors in
Navios Acquisition;
(e) a cashflow forecast for the Group for the 3 years
following the Share Acquisition Date; and
(f) evidence that Navios Acquisition is the sole
shareholder of the Shareholder and the Shareholder is the sole
shareholder of each of the Borrowers.
8.2 Security
value maintenance
8.2.1 Security shortfall
If, at any time after the first Delivery Date, the Security
Value shall be less than the Required Security Amount, the Agent
(acting on the instructions of the Majority Lenders) shall give
notice to the Borrowers requiring that such deficiency be
remedied and then the Borrowers must either:
(a) prepay within a period of thirty (30) days of the
date of receipt by the Borrowers of the Agent’s said notice
such part of the Delivered Tranches as will result in the
Security Value after such prepayment (taking into account any
other repayment of the Delivered Tranches made between the date
of the notice and the date of such prepayment) being equal to or
higher than the Required Security Amount; or
(b) within thirty (30) days of the date of receipt by
the Borrowers of the Agent’s said notice constitute to the
satisfaction of the Agent such further security for the Loan as
shall be acceptable to the
Majority Lenders having a value for security purposes (as
determined by the Agent in its absolute discretion) at the date
upon which such further security shall be constituted which,
when added to the Security Value, shall not be less than the
Required Security Amount as at such date.
The provisions of clauses 4.6 and 4.7 shall apply to
prepayments under clause 8.2.1(a) provided that the Agent
shall apply such prepayments (i) pro rata against the
Tranches, (ii) in reduction of the repayment instalments
under clause 4.1 pro rata and the amounts of the Loan
prepaid hereunder shall not be available to be re-borrowed.
8.2.2 Valuation of Mortgaged Vessels
Each Mortgaged Vessel shall, for the purposes of this Agreement,
be valued (at the Borrowers’ expense) in USD by taking a
valuation prepared by any Approved Broker appointed by the
Agent, such valuation to be made without physical inspection,
and on the basis of a sale for prompt delivery for cash at
arms’ length, on normal commercial terms, as between a
willing buyer and a willing seller without taking into account
the benefit or burden of any charterparty or other engagement
concerning the relevant Mortgaged Vessel to be obtained (in
addition to (a) above) at any other time as the Agent
(acting on the instructions of the Majority Lenders) shall
additionally require, at the cost of the Lenders.
The Approved Brokers’ valuations for each Mortgaged Vessel
on each such occasion shall constitute the Valuation Amount of
such Mortgaged Vessel for the purposes of this Agreement until
superceded by the next such valuation.
8.2.3 Information
The Borrowers undertake with the Banks to supply to the Agent
and to the Approved Broker such information concerning the
relevant Mortgaged Vessel and its condition as such shipbrokers
may require for the purpose of determining any Valuation Amount.
8.2.4 Costs
All costs in connection with the obtaining and any determining
of any Valuation Amount pursuant to Clause 8.2.2(a) and any
valuation either of any additional security for the purposes of
ascertaining the Security Value at any time or necessitated by
the Borrowers electing to constitute additional security
pursuant to clause 8.2.1(b), must be paid by the Borrowers.
8.2.5 Valuation of additional security
For the purposes of this clause 8.2, the market value
(i) of any additional security over a ship (other than the
Vessels) shall be determined in accordance with
clause 8.2.2 and (ii) of any other additional security
provided or to be provided to the Banks or any of them shall be
determined by the Agent after consultation with the Lenders.
8.2.6 Documents and evidence
In connection with any additional security provided in
accordance with this clause 8.2, the Agent shall be
entitled to receive (at the Borrowers’ expense) such
evidence and documents of the kind referred to in
schedule 3 as may in the Agent’s opinion be
appropriate and such favourable legal opinions as the Agent
shall in its absolute discretion require.
8.3 Negative
undertakings
The Borrowers jointly and severally undertake with each Bank
that, from the Execution Date until the end of the Facility
Period, they will not, without the prior written consent of the
Agent (acting on the instructions of the Majority Banks):
8.3.1 Negative pledge
permit any Encumbrance (other than a Permitted Encumbrance) to
subsist, arise or be created or extended over all or any part of
their respective present or future undertakings, assets, rights
or revenues to secure or prefer any present or future
Indebtedness or other liability or obligation of any Group
Member or any other person;
8.3.2 No merger or transfer
merge or consolidate with any other person or permit any change
to the legal or beneficial ownership of their shares from that
existing at the Execution Date;
8.3.3 Disposals
sell, transfer, assign, create security or option over, pledge,
pool, abandon, lend or otherwise dispose of or cease to exercise
direct control over any part of their present or future
undertaking, assets, rights or revenues (otherwise than by
transfers, sales or disposals for full consideration in the
ordinary course of trading) whether by one or a series of
transactions related or not;
8.3.4 Other business or manager
undertake any business other than the ownership and operation of
the Ships or employ anyone other than the Manager as commercial
and technical manager of the Vessels;
8.3.5 Acquisitions
acquire any further assets other than the Vessels and rights
arising under contracts entered into by or on behalf of the
Borrowers in the ordinary course of their businesses of owning,
operating and chartering the Vessels;
8.3.6 Other obligations
incur any obligations except for obligations arising under the
Underlying Documents or the Security Documents or contracts
entered into in the ordinary course of their business of owning,
operating and chartering the Vessels;
8.3.7 No borrowing
incur any Borrowed Money except for Borrowed Money pursuant to
the Security Documents;
8.3.8 Repayment of borrowings
repay or prepay the principal of, or pay interest on or any
other sum in connection with any of their Borrowed Money except
for Borrowed Money pursuant to the Security Documents;
8.3.9 Guarantees
issue any guarantees or otherwise become directly or
contingently liable for the obligations of any person, firm, or
corporation except pursuant to the Security Documents and except
for guarantees from time to time required in the ordinary course
by any protection and indemnity or war risks association with
which a Vessel is entered, guarantees required to procure the
release of such Vessel from any arrest, detention, attachment or
levy or guarantees required for the salvage of a Vessel;
8.3.10 Loans
make any loans or grant any credit (save for normal trade credit
in the ordinary course of business) to any person or agree to do
so;
8.3.11 Sureties
permit any Indebtedness of any Borrower to any person (other
than the Banks pursuant to the Security Documents) to be
guaranteed by any person (except for guarantees from time to
time required in the ordinary course of business and in the
ordinary course by any protection and indemnity or war risks
association with which a Vessel is entered, guarantees required
to procure the release of such Vessel from any arrest,
detention, attachment or levy or guarantees or undertakings
required for the salvage of a Vessel and guarantees in favour of
the Builder in respect of any Shipbuilding Contract); or
8.3.12 Subsidiaries
form or acquire any Subsidiaries.
9 CONDITIONS
9.1 Advance
of any Advance
The obligation of each Lender to make its Commitment available
in respect of any Advance is conditional upon:
9.1.1 that, on or before the service of the first Drawdown
Notice hereunder, the Agent has received the documents described
in Part A of Schedule 3 in form and substance
satisfactory to the Agent and its lawyers;
9.1.2 that, on or before the service of the Drawdown Notice
in respect of the Advances referred to in clauses 2.5.1(a)
and 2.5.2(a), the Agent has received the documents described in
Part B of Schedule 3 in respect of the Relevant Vessel
(as defined in Schedule 3) in form and substance
satisfactory to the Agent and its lawyers;
9.1.3 that, on or before the service of the Drawdown Notice
in respect of the Advances referred to in clauses 2.5.1(b)
and 2.5.2(b), the Agent has received the documents described in
Part C of Schedule 3 in respect of the Relevant Vessel
in form and substance satisfactory to the Agent and its lawyers;
9.1.4 that, on or before service of the Drawdown Notice in
respect of Advances referred to in clause 2.5.2(c), the
Agent has received the documents described in Part D of
Schedule 3 in respect of the Relevant Vessel in form and
substance satisfactory to the Agent and its lawyers;
9.1.5 that, on or before service of the Drawdown Notice in
respect of Advances referred to in clause 2.5.2(d), the
Agent has received the documents described in Part E of
Schedule 3 in respect of the Relevant Vessel in form and
substance satisfactory to the Agent and its lawyers;
9.1.6 that, on or before service of the Drawdown Notice in
respect of Advances referred to in clauses 2.5.1(c) and
2.5.2(e), the Agent has received the documents described in
Part F of Schedule 3 in respect of the Relevant Vessel
in form and substance satisfactory to the Agent and its lawyers;
9.1.7 that, on or before service of the Drawdown Notice in
respect of Advances referred to in clauses 2.5.1(d) and
2.5.2(f), the Agent has received the documents described in
Part G of Schedule 3 in respect of the Relevant Vessel
in form and substance satisfactory to the Agent and its lawyers;
9.1.8 the representations and warranties contained in
clause 7 and clauses 4.1 and 4.2 of the Corporate
Guarantee being then true and correct as if each was made with
respect to the facts and circumstances existing at such
time; and
9.1.9 no Default having occurred and being continuing and
there being no Default which would result from the making of the
Loan.
9.2 Waiver
of conditions precedent
The conditions specified in this clause 9 are inserted
solely for the benefit of the Lenders and may be waived by the
Agent in whole or in part and with or without conditions only
with the consent of the Majority Lenders.
9.3 Further
conditions precedent
Not later than five (5) Banking Days prior to the Drawdown
Date of an Advance and not later than five (5) Banking Days
prior to any Interest Payment Date, the Agent (acting on the
instructions of the Majority Lenders) may request and the
Borrowers must, not later than two (2) Banking Days prior
to such date, deliver to the Agent (at the Borrowers’
expense) on such request further favourable certificates
and/or
opinions as to any or all of the matters which are the subject
of clauses 7, 8, 9 and 10.
9.4 Release
of Shares Pledges
The Lenders agree that upon the drawdown of the final Advance in
respect of a Tranche, and receipt of a Negative Pledge in
respect of the Owner of the Vessel financed by that Tranche, the
Security Trustee shall (provided no Event of Default has
occurred) release the Shares Pledge in respect of that Owner.
10 EVENTS
OF DEFAULT
10.1 Events
Each of the following events shall constitute an Event of
Default (whether such event shall occur voluntarily or
involuntarily or by operation of law or regulation or in
connection with any judgment, decree or order of any court or
other authority or otherwise, howsoever):
10.1.1 Non-payment: any Security
Party fails to pay any sum payable by it under any of the
Security Documents at the time, in the currency and in the
manner stipulated in the Security Documents or the Underlying
Documents (and so that, for this purpose, sums payable
(i) under clauses 3.1 and 4.1 shall be treated as
having been paid at the stipulated time if (aa) received by the
Agent within two (2) days of the dates therein referred to
and (bb) such delay in receipt is caused by administrative or
other delays or errors within the banking system and
(ii) on demand shall be treated as having been paid at the
stipulated time if paid within two (2) Banking Days of
demand); or
10.1.2 Breach of Insurance and certain other
obligations: any Owner or, as the context may
require, the Manager or any other person fails to obtain
and/or
maintain the Insurances (as defined in, and in accordance with
the requirements of, the Ship Security Documents) for any of the
Mortgaged Vessels or if any insurer in respect of such
Insurances cancels the Insurances or disclaims liability by
reason, in either case, of mis-statement in any proposal for the
Insurances or for any other failure or default on the part of
the Borrowers or any other person or a Borrower commits any
breach of or omits to observe any of the obligations or
undertakings expressed to be assumed by them under
clause 8; or
10.1.3 Breach of other
obligations: any Security Party commits any
breach of or omits to observe any of its obligations or
undertakings expressed to be assumed by it under any of the
Security Documents (other than those referred to in
clauses 10.1.1 and 10.1.2 above) unless such breach or
omission, in the opinion of the Agent (following consultation
with the Banks) is capable of remedy, in which case the same
shall constitute an Event of Default if it has not been remedied
within fifteen (15) days of the occurrence thereof; or
10.1.4 Misrepresentation: any
representation or warranty made or deemed to be made or repeated
by or in respect of any Security Party in or pursuant to any of
the Security Documents or in any notice, certificate or
statement referred to in or delivered under any of the Security
Documents is or proves to have been incorrect or misleading in
any material respect; or
10.1.5 Cross-default: any
Indebtedness of any Borrower or any Indebtedness of any Security
Party in an amount exceeding three million Dollars
(USD3,000,000) is not paid when due (subject to applicable grace
periods) or any such Indebtedness of any Borrower or any
Security Party becomes (whether by declaration or automatically
in accordance with the relevant agreement or instrument
constituting the same) due and payable prior to the date when it
would otherwise have become due (unless as a result of the
exercise by the relevant Borrower or Security Party of a
voluntary right of prepayment), or any creditor of a Borrower or
any Security Party becomes entitled to declare any such
Indebtedness due and payable or any facility or commitment
available to any Borrower or any Security Party relating to
Indebtedness is withdrawn, suspended or cancelled by reason of
any default (however described) of the person concerned; or
10.1.6 Execution: any uninsured
judgment or order made against any Security Party is not stayed,
appealed against or complied with within fifteen (15) days
or a creditor attaches or takes possession of, or a distress,
execution, sequestration or other process is levied or enforced
upon or sued out against, any of the undertakings, assets,
rights or revenues of any Security Party and is not discharged
within thirty (30) days; or
10.1.7 Insolvency: any Security
Party is unable or admits inability to pay its debts as they
fall due; suspends making payments on any of its debts or
announces an intention to do so; becomes insolvent; or any
Security Party has negative net worth (taking into account
contingent liabilities); or suffers the declaration by any
court, liquidator, receiver or administrator of a moratorium in
respect of any of its Indebtedness; or
10.1.8 Reduction or loss of
capital: a meeting is convened by any
Security Party (other than the Corporate Guarantor) without the
Agent’s prior written consent, for the purpose of passing
any resolution to purchase, reduce or redeem any of its share
capital without the Agent’s prior written consent; or
10.1.9 Dissolution: any corporate
action, Proceedings or other steps are taken to dissolve or
wind-up any
Security Party or an order is made or resolution passed for the
dissolution or winding up of any Security Party or a notice is
issued convening a meeting for such purpose; or
10.1.10 Administration: any
petition is presented, notice given or other steps are taken
anywhere to appoint an administrator of any Security Party or
the Agent reasonably believes that any such petition or other
step is imminent or an administration order is made in relation
to any Security Party; or
10.1.11 Appointment of receivers and
managers: any administrative or other
receiver is appointed anywhere of any Security Party or any part
of its assets
and/or
undertaking or any other steps are taken to enforce any
Encumbrance over all or any part of the assets of any Security
Party; or
10.1.12 Compositions: any
corporate action, legal proceedings or other procedures or steps
are taken, or negotiations commenced, by any Security Party or
by any of its creditors (other than the Corporate Guarantor) or
any legal proceedings are taken in respect of the Corporate
Guarantor, with a view to the general readjustment or
rescheduling of all or part of its Indebtedness or to proposing
any kind of composition, compromise or arrangement involving
such company and any of its creditors; or
10.1.13 Analogous
proceedings: there occurs, in relation to any
Security Party, in any country or territory in which any of them
carries on business or to the jurisdiction of whose courts any
part of their assets is subject, any event which, in the
reasonable opinion of the Agent, appears in that country or
territory to correspond with, or have an effect equivalent or
similar to, any of those mentioned in clauses 10.1.6 to
10.1.12 (inclusive) or any Security Party otherwise becomes
subject, in any such country or territory, to the operation of
any law relating to insolvency, bankruptcy or
liquidation; or
10.1.14 Cessation of business: any
Security Party suspends or ceases or threatens to suspend or
cease to carry on its business without the prior written consent
of the Agent, such consent not to be unreasonably
withheld; or
10.1.15 Seizure: all or a material
part of the undertaking, assets, rights or revenues of, or
shares or other ownership interests in, any Security Party are
seized, nationalised, expropriated or compulsorily acquired by
or under the authority of any Government Entity; or
10.1.16 Invalidity: any of the
Security Documents and the Underlying Documents shall at any
time and for any reason become invalid or unenforceable or
otherwise cease to remain in full force and effect, or if the
validity or enforceability of any of the Security Documents and
the Underlying Documents shall at any time and for any reason be
contested by any Security Party which is a party thereto, or if
any such Security Party shall deny that it has any, or any
further, liability thereunder; or
10.1.17 Unlawfulness: any
Unlawfulness occurs or it becomes impossible or unlawful at any
time for any Security Party, to fulfil any of the covenants and
obligations expressed to be assumed by it in any of the Security
Documents or for a Bank to exercise the rights or any of them
vested in it under any of the Security Documents or
otherwise; or
10.1.18 Repudiation: any Security
Party repudiates any of the Security Documents or does or causes
or permits to be done any act or thing evidencing an intention
to repudiate any of the Security Documents; or
10.1.19 Encumbrances
enforceable: any Encumbrance (other than
Permitted Liens) in respect of any of the property (or part
thereof) which is the subject of any of the Security Documents
becomes enforceable; or
10.1.20 Arrest: a Mortgaged Vessel
is arrested, confiscated, seized, taken in execution, impounded,
forfeited, detained in exercise or purported exercise of any
possessory lien or other claim or otherwise taken from the
possession of its Owner and that Owner shall fail to procure the
release of such Mortgaged Vessel within a period of thirty
(30) days thereafter (this clause does not include capture
of a Vessel by pirates); or
10.1.21 Registration: the
registration of a Mortgaged Vessel under the laws and flag of
the relevant Flag State is cancelled or terminated without the
prior written consent of the Majority Banks; or
10.1.22 Unrest: the Flag State of
a Mortgaged Vessel or the country in which any Security Party is
incorporated or domiciled becomes involved in hostilities or
civil war or there is a seizure of power in the Flag State by
unconstitutional means unless the Owner of the Vessel registered
in such Flag State shall have transferred its Vessel onto a new
flag acceptable to the Banks within sixty (60) days of the
start of such hostilities or civil war or seizure of
power; or
10.1.23 Environmental
Incidents: an Environmental Incident occurs
which gives rise, or may give rise, to an Environmental Claim
which could, in the opinion of the Agent be expected to have a
material adverse effect (i) on the business, assets or
financial condition of any Security Party or the Group taken as
a whole or (ii) on the security constituted by any of the
Security Documents or the enforceability of that security in
accordance with its terms; or
10.1.24 P&I: an Owner or the
Manager or any other person fails or omits to comply with any
requirements of the protection and indemnity association or
other insurer with which a Mortgaged Vessel is entered for
insurance or insured against protection and indemnity risks
(including oil pollution risks) to the effect that any cover
(including, without limitation, any cover in respect of
liability for Environmental Claims arising in jurisdictions
where such Mortgaged Vessel operates or trades) is or may be
liable to cancellation, qualification or exclusion at any
time; or
10.1.25 Material events: any other
event occurs or circumstance arises which, in the opinion of the
Agent (following consultation with the Banks), is likely
materially and adversely to affect either (i) the ability
of any Security Party to perform all or any of its obligations
under or otherwise to comply with the terms of any of the
Security Documents or (ii) the security created by any of
the Security Documents; or
10.1.26 Required
Authorisations: any Required Authorisation is
revoked or withheld or modified or is otherwise not granted or
fails to remain in full force and effect or if any exchange
control or other law or regulation shall exist which would make
any transaction under the Security Documents or the continuation
thereof, unlawful or would prevent the performance by any
Security Party of any term of any of the Security Documents;
10.1.27 Ownership: there is any
change in the ownership of any Borrower without the prior
written consent of the Agent or (following the Share Acquisition
Date) the number of shares of and in Navios Acquisition owned by
Navios Maritime Holdings Inc., Xxx. Xxxxxxxx Xxxxxxx and
their respective affiliates in aggregate falls below 30% of the
issued shares of Navios Acquisition; or
10.1.28 Money Laundering: any
Security Party is in breach of or fails to observe any law,
requirement, measure or procedure implemented to combat
“money laundering” as defined in Article 1 of the
Directive (91/308 EEC) of the Council of the European
Communities; or
10.1.29 eutscher
Rahmenvertrag: (i) an Event of Default
or Potential Event of Default (or the equivalent under the
Deutscher Rahmenvertrag) has occurred and is continuing under
the Deutscher Rahmenvertrag or (ii) an Early Termination
Date (as defined in the Deutscher Rahmenvertrag) has occurred or
been effectively designated under the Deutscher Rahmenvertrag or
(iii) a person entitled to do so gives notice of an Early
Termination Date (as defined in the Deutscher Rahmenvertrag) or
(iv) the Deutscher Rahmenvertrag is terminated, cancelled,
suspended, rescinded or revoked or otherwise ceases to remain in
full force and effect for any reason.
10.2 Acceleration
The Agent may, and if so requested by the Majority Lenders
shall, without prejudice to any other rights of the Lenders, at
any time after the happening of an Event of Default by notice to
the Borrowers declare that:
10.2.1 the obligation of each Lender to make its Commitment
available shall be terminated, whereupon the Commitment shall be
reduced to zero forthwith; and/or
10.2.2 the Loan and all interest accrued and all other sums
payable whatsoever under the Security Documents have become due
and payable, whereupon the same shall, immediately or in
accordance with the terms of such notice, become due and payable.
10.3 Demand
Basis
If, under clause 10.2.2, the Agent has declared the Loan to
be due and payable on demand, at any time thereafter the Agent
may (and if so instructed by the Majority Lenders shall) by
written notice to the Borrowers (a) demand repayment of the
Loan on such date as may be specified whereupon, regardless of
any other provision of this Agreement, the Loan shall become due
and payable on the date so specified together with all interest
accrued and all other sums payable under this Agreement or
(b) withdraw such declaration with effect from the date
specified in such notice.
11 INDEMNITIES
11.1 General
indemnity
The Borrowers agree to indemnify each Bank on demand, without
prejudice to any of such Bank’s other rights under any of
the Security Documents, against any loss (including loss of
Margin) or expense (including, without limitation, Break Costs)
which such Bank shall certify as sustained by it as a
consequence of any Default, any prepayment of the Loan being
made under clauses 4.2, 4.3, 4.4, 4.5, 8.2.1(a) or 12.1 or
any other repayment or prepayment of the Loan or part thereof
being made otherwise than on an Interest Payment Date relating
to the part of the Loan prepaid or repaid;
and/or any
Advance not being made for any reason (excluding any default by
the Agent, the Security Trustee or any Lender) after the
Drawdown Notice for such Advance has been given.
11.2 Environmental
indemnity
The Borrowers shall indemnify each Bank on demand and hold it
harmless from and against all costs, claims, expenses, payments,
charges, losses, demands, liabilities, actions, Proceedings,
penalties, fines, damages, judgements, orders, sanctions or
other outgoings of whatever nature which may be incurred or made
or asserted whensoever against such Bank at any time, whether
before or after the repayment in full of principal and interest
under this Agreement, arising howsoever out of an Environmental
Claim made or asserted against such Bank which would not have
been, or been capable of being, made or asserted against such
Bank had it not entered into any of the Security Documents or
been involved in any of the resulting or associated transactions.
11.3 Capital
adequacy and reserve requirements indemnity
The Borrowers shall promptly indemnify each Lender on demand
against any cost incurred or loss suffered by such Lender as a
result of its complying with (i) the minimum reserve
requirements from time to time of the European Central Bank
(ii) any capital adequacy directive of the European Union
and/or
(iii) any revised framework for international convergence
of capital measurements and capital standards
and/or any
regulation imposed by any Government Entity in connection
therewith,
and/or in
connection with maintaining required reserves with a relevant
national central bank to the extent that such compliance or
maintenance relates to such Lender’s Commitment
and/or
Contribution or deposits obtained by it to fund the whole or
part thereof and to the extent such cost or loss is not
recoverable by such Lender under clause 12.2.
12 UNLAWFULNESS
AND INCREASED COSTS
12.1 Unlawfulness
If it is or becomes contrary to any law, directive or regulation
for any Lender to contribute to an Advance or to maintain its
Commitment or fund its Contribution to the Loan or any Advance,
such Lender shall promptly, through the Agent, give notice to
the Borrowers whereupon (a) such Lender’s Contribution
and Commitment shall be reduced to zero and (b) the
Borrowers shall be obliged to prepay such Lender’s
Contribution either (i) forthwith or (ii) on a future
specified date not being earlier than the latest date permitted
by the relevant law, directive or regulation together with
interest accrued to the date of prepayment and all other sums
payable by the Borrowers under this Agreement.
12.2 Increased
costs
If the result of any change in, or in the interpretation or
application of, or the introduction of, any law or any
regulation, request or requirement (whether or not having the
force of law, but, if not having the force of law, with which a
Lender or, as the case may be, its holding company habitually
complies), including (without limitation) those relating to
Taxation, capital adequacy, liquidity, reserve assets, cash
ratio deposits and special deposits, is to:
12.2.1 subject any Lender to Taxes or change the basis of
Taxation of any Lender with respect to any payment under any of
the Security Documents (other than Taxes or Taxation on the
overall net income, profits or gains of such Lender imposed in
the jurisdiction in which its principal or lending office under
this Agreement is located); and/or
12.2.2 increase the cost to, or impose an additional cost
on, any Lender or its holding company in making or keeping such
Lender’s Commitment available or maintaining or funding all
or part of such Lender’s Contribution; and/or
12.2.3 reduce the amount payable or the effective return to
any Lender under any of the Security Documents; and/or
12.2.4 reduce any Lender’s or its holding
company’s rate of return on its overall capital by reason
of a change in the manner in which it is required to allocate
capital resources to such Lender’s obligations under any of
the Security Documents; and/or
12.2.5 require any Lender or its holding company to make a
payment or forgo a return on or calculated by reference to any
amount received or receivable by such Lender under any of the
Security Documents; and/or
12.2.6 require any Lender or its holding company to incur
or sustain a loss (including a loss of future potential profits)
by reason of being obliged to deduct all or part of its
Contribution or the Loan from its capital for regulatory
purposes,
then and in each such case (subject to clause 12.3):
(a) such Lender shall notify, via the Agent, the Borrowers
in writing of such event promptly upon its becoming aware of the
same; and
(b) the Borrowers shall on demand made at any time whether
or not such Lender’s Contribution has been repaid, pay to
the Agent for the account of such Lender the amount which such
Lender specifies (in a certificate setting forth the basis of
the computation of such amount but not including any matters
which such Lender or its holding company regards as
confidential) is required to compensate such Lender
and/or (as
the case may be) its holding company for such liability to
Taxes, cost, reduction, payment , forgone return or loss.
For the purposes of this clause 12.2 “holding
company” means the company or entity (if any) within the
consolidated supervision of which a Lender is included.
12.3 Exception
Nothing in clause 12.2 shall entitle any Lender to receive
any amount in respect of compensation for any such liability to
Taxes, increased or additional cost, reduction, payment,
foregone return or loss to the extent that the same is the
subject of an additional payment under clause 6.6.
13 APPLICATION
OF MONEYS, SET OFF, PRO-RATA PAYMENTS AND
MISCELLANEOUS
13.1 Application
of moneys
All moneys received by the Agent
and/or the
Security Trustee under or pursuant to any of the Security
Documents and expressed to be applicable in accordance with the
provisions of this clause 13.1 or in a manner determined in
the Security Trustee’s or (as the case may be) the
Agent’s discretion, shall be applied in the following
manner:
13.1.1 first, in or towards payment, on a pro-rata basis,
of any unpaid costs and expenses of the Banks or any of them
under any of the Security Documents;
13.1.2 secondly, in or towards payment of any fees payable
to the Arranger, the Agent or any of the other Banks under, or
in relation to, the Security Documents which remain unpaid;
13.1.3 thirdly, in or towards payment to the Banks, on a
pro rata basis, of any accrued interest owing in respect of the
Loan which shall have become due under any of the Security
Documents but remains unpaid;
13.1.4 fourthly, in or towards repayment of the Loan
(whether the same is due and payable or not); and
13.1.5 fifthly, in or towards payment to the Lenders, on a
pro rata basis any Break Costs and any other sum relating to the
Loan which shall have become due under any of the Security
Documents but remains unpaid;
13.1.6 sixthly, in or towards payment to the Swap Bank of
any sum which shall have become due under the Deutscher
Rahmenvertrag but remains unpaid;
13.1.7 seventhly, the surplus (if any) shall be paid to the
Borrowers or to whomsoever else may then be entitled to receive
such surplus.
13.2 Set-off
13.2.1 Each Borrower irrevocably authorises each Bank
(without prejudice to any of such Bank’s rights at law, in
equity or otherwise), at any time and without notice to the
Borrowers, to apply any credit balance to which any Borrower is
then entitled standing upon any account of any Borrower with any
branch of such Bank in or towards satisfaction of any sum due
and payable from the Borrowers to such Bank under any of the
Security Documents. For this purpose, each Bank is authorised to
purchase with the moneys standing to the credit of such account
such other currencies as may be necessary to effect such
application.
13.2.2 No Bank shall be obliged to exercise any right given
to it by this clause 13.2. Each Bank shall notify the
Borrowers through the Agent forthwith upon the exercise or
purported exercise of any right of set off giving full details
in relation thereto and the Agent shall inform the other Banks.
13.2.3 Nothing in this clause 13.2 shall be effective
to create a charge or other security interest.
13.3 Pro
rata payments
13.3.1 If at any time any Lender (the “Recovering
Lender”) receives or recovers any amount owing to it by
the Borrowers under this Agreement (other than pursuant to any
other Security Document) by direct payment, set-off or in any
manner other than by payment through the Agent pursuant to
clauses 6.1 or 6.9 (not being a payment received from a
Transferee Bank or a sub-participant in such Lender’s
Contribution or any other payment of an amount due to the
Recovering Lender for its sole account pursuant to
clauses 3.6, 5, 6.6, 11.1, 11.2, 11.3, 12.1, or 12.2), the
Recovering Lender shall, within two (2) Banking Days of
such receipt or recovery (a “Relevant Receipt”)
notify the Agent of the amount of the Relevant Receipt. If the
Relevant
Receipt exceeds the amount which the Recovering Lender would
have received if the Relevant Receipt had been received by the
Agent and distributed pursuant to clause 6.1 or 6.10 (as
the case may be) then:
(a) within two (2) Banking Days of demand by the
Agent, the Recovering Lender shall pay to the Agent an amount
equal (or equivalent) to the excess;
(b) the Agent shall treat the excess amount so paid by the
Recovering Lender as if it were a payment made by the Borrowers
and shall distribute the same to the Lenders (other than the
Recovering Lenders) in accordance with clause 6.10; and
(c) as between the Borrowers and the Recovering Lender the
excess amount so re-distributed shall be treated as not having
been paid but the obligations of the Borrowers to the other
Lenders shall, to the extent of the amount so re-distributed to
them, be treated as discharged.
13.3.2 If any part of the Relevant Receipt subsequently has
to be wholly or partly refunded by the Recovering Lender
(whether to a liquidator or otherwise) each Lender to which any
part of such Relevant Receipt was so re-distributed shall on
request from the Recovering Lender repay to the Recovering
Lender such Lender’s pro-rata share of the amount which has
to be refunded by the Recovering Lender.
13.3.3 Each Lender shall on request supply to the Agent
such information as the Agent may from time to time request for
the purposes of this clause 13.3.
13.3.4 Notwithstanding the foregoing provisions of this
clause 13.3, no Recovering Lender shall be obliged to share
any Relevant Receipt which it receives or recovers pursuant to
Proceedings taken by it to recover any sums owing to it under
this Agreement with any other party which has a legal right to,
but does not, either join in such Proceedings or commence and
diligently pursue separate Proceedings to enforce its rights in
the same or another court (unless the Proceedings instituted by
the Recovering Lender are instituted by it without prior notice
having been given to such party through the Agent).
13.4 No
release
For the avoidance of doubt it is hereby declared that failure by
any Recovering Lender to comply with the provisions of
clause 13.3 shall not release any other Recovering Lender
from any of its obligations or liabilities under
clause 13.3.
13.5 No
charge
The provisions of this clause 13 shall not, and shall not
be construed so as to, constitute a charge or create or declare
a trust by a Lender over all or any part of a sum received or
recovered by it in the circumstances mentioned in
clause 13.3.
13.6 Further
assurance
Each Borrower undertakes with each Bank that the Security
Documents shall both at the date of execution and delivery
thereof and throughout the Facility Period be valid and binding
obligations of the respective parties thereto which, with the
rights of each Lender thereunder, are enforceable in accordance
with their respective terms and that they will, at their
expense, execute, sign, perfect and do, and will procure the
execution, signing, perfecting and doing by each of the other
Security Parties of, any and every such further assurance,
document, act or thing as in the reasonable opinion of the
Majority Lenders may be necessary or desirable for perfecting
the security contemplated or constituted by the Security
Documents.
13.7 Conflicts
In the event of any conflict between this Agreement and any of
the other Security Documents, the provisions of this Agreement
shall prevail.
13.8 No
implied waivers, remedies cumulative
No failure or delay on the part of any of the Banks to exercise
any power, right or remedy under any of the Security Documents
shall operate as a waiver thereof, nor shall any single or
partial exercise by any Bank of any power, right or remedy
preclude any other or further exercise thereof or the exercise
of any other power, right or remedy. The remedies provided in
the Security Documents are cumulative and are not exclusive of
any remedies provided by law. No waiver by any Bank shall be
effective unless it is in writing.
13.9 Severability
If any provision of this Agreement is prohibited, invalid,
illegal or unenforceable in any jurisdiction, such prohibition,
invalidity, illegality or unenforceability shall not affect or
impair howsoever the remaining provisions thereof or affect the
validity, legality or enforceability of such provision in any
other jurisdiction.
13.10 Force
Majeure
Regardless of any other provision of this Agreement, none of the
Banks shall be liable for any failure to perform the whole or
any part of this Agreement resulting directly or indirectly from
(i) the action or inaction or purported action of any
governmental or local authority (ii) any strike, lockout,
boycott or blockade (including any strike, lockout, boycott or
blockade effected by or upon any Bank or any of its
representatives or employees) (iii) any act of God
(iv) any act of war (whether declared or not) or terrorism
(v) any failure of any information technology or other
operational systems or equipment affecting any Bank or
(vi) any other circumstances whatsoever outside any
Bank’s control.
13.11 Amendments
This Agreement may be amended or varied only by an instrument in
writing executed by all parties hereto who irrevocably agree
that the provisions of this clause 13.11 may not be waived
or modified except by an instrument in writing to that effect
signed by all of them.
13.12 Counterparts
This Agreement may be executed in any number of counterparts and
all such counterparts taken together shall be deemed to
constitute one and the same agreement which may be sufficiently
evidenced by one counterpart.
13.13 English
language
All documents required to be delivered under
and/or
supplied whensoever in connection howsoever with any of the
Security Documents and all notices, communications, information
and other written material whatsoever given or provided in
connection howsoever therewith must either be in the English
language or accompanied by an English translation certified by a
notary, lawyer or consulate acceptable to the Agent.
14 ACCOUNTS
AND RETENTIONS
14.1 General
Each Borrower undertakes with each Bank that it will ensure that:
14.1.1 it will on or before the Delivery Date in respect of
its Vessel, open an Earnings Account in its name; and
14.1.2 all moneys payable to any Owner in respect of the
Earnings (as defined in the relevant Mortgage) of its Vessel
shall, unless and until the Agent (acting on the instructions of
the Majority Lenders) directs to the contrary pursuant to the
provisions of the relevant Mortgage, be paid to the Earnings
Account, Provided however that if any of the moneys paid to any
Earnings Account are payable in a currency other than USD, they
shall be paid to a sub-account of that Earnings Account
denominated in such currency (except that if the Shareholder
fails to open such a sub-account, the relevant Account Bank
shall then convert such moneys into
USD at that Account Bank’s spot rate of exchange at the
relevant time for the purchase of USD with such currency and the
term “spot rate of exchange” shall include any premium
and costs of exchange payable in connection with the purchase of
USD with such currency).
14.2 Earnings
Accounts: withdrawals
Any sums standing to the credit of the Earnings Accounts may be
applied from time to time (i) firstly to make the payments
required under this Agreement, (ii) secondly, subject to
there being no breach of Clause 14.3 and to no Event of Default
having occurred, in the operation of the Mortgaged Vessels and
(iii) subject to no Event of Default having occurred and to
there being at any time sufficient funds to pay amounts due
under (i) and (ii) above as they fall due, thirdly for
the general corporate purposes of the Borrowers.
14.3 Retention
Account: credits and withdrawals
14.3.1 The Borrowers undertake with each Bank that,
throughout the Facility Period, they will procure that, on each
Retention Date there is paid (whether from the Earnings Accounts
or elsewhere) to the Retention Account, the Retention Amount for
such date.
14.3.2 Unless and until there shall occur an Event of
Default (whereupon the provisions of clause 14.5 shall
apply), all Retention Amounts credited to the Retention Account
together with interest from time to time accruing or at any time
accrued thereon must be applied by the relevant Account Bank
(and the Borrowers hereby irrevocably authorise that Account
Bank so to apply the same) upon each Repayment Date
and/or on
each day that interest is payable on the Loan or a Tranche
pursuant to clause 3.1, in or towards payment to the Agent
of the instalment then falling due for repayment or, as the case
may be, the amount of interest then due. Each such application
by such Account Bank shall constitute a payment in or towards
satisfaction of the Borrowers’ corresponding payment
obligations under this Agreement but shall be strictly without
prejudice to the obligations of the Borrowers to make any such
payment to the extent that the aforesaid application by the said
Account Bank is insufficient to meet the same.
14.3.3 Unless the Agent (acting on the instructions of the
Majority Banks) otherwise agrees in writing and subject to this
clause 14.3.2, Borrowers shall not be entitled to withdraw
any moneys from the Retention Account at any time during the
Facility Period.
14.4 Application
of accounts
At any time after the occurrence of an Event of Default, the
Agent may (and on the instructions of the Majority Lenders
shall), without notice to the Borrowers, instruct the Account
Banks to apply all moneys then standing to the credit of the
Earnings Accounts
and/or the
Retention Account
and/or the
Equity Deposit Accounts (together with interest from time to
time accruing or accrued thereon) in or towards satisfaction of
any sums due to the Banks or any of them under the Security
Documents in the manner specified in clause 13.1.
14.5 Charging
of accounts
The Earnings Accounts, the Retention Account and the Equity
Deposit Accounts and all amounts from time to time standing to
the credit thereof shall be subject to the security constituted
and the rights conferred by the Earnings Account Pledges, the
Retention Account Pledge and the Equity Deposit Account Pledges
respectively.
14.6 Equity
Deposit Accounts
The aggregate credit balances on the Equity Deposit Accounts
shall at no time be less than the difference between
(i) the aggregate of unpaid instalments under the
Shipbuilding Contracts and (ii) the aggregate of the
undrawn Commitments and the Borrowers may on each Drawdown Date
apply sums from the Equity Deposit Accounts equally in payment
of the balance (after taking into account the relevant Advance)
of the instalment then payable to the Builder.
15 ASSIGNMENT,
TRANSFER AND LENDING OFFICE
15.1 Benefit
and burden
This Agreement shall be binding upon, and enure for the benefit
of, the Banks and the Borrowers and their respective successors
in title.
15.2 No
assignment by Borrowers
No Borrower may assign or transfer any of its rights or
obligations under this Agreement.
15.3 Transfers
by Banks
any Lender (the “Transferor Lender”) may at any
time cause all or any part of its rights, benefits
and/or
obligations under this Agreement and the other Security
Documents to be transferred to another first class international
bank or financial institution (in either case a
“Transferee Lender”) (i) if such transfer
is to another branch, a subsidiary or affiliate of such Lender
and (ii) otherwise reasonably acceptable to the Borrowers,
in each case by delivering to the Agent a Transfer Certificate
duly completed and duly executed by the Transferor Lender and
the Transferee Lender provided that any Transferee Lender
shall, before transferring its right, benefits and obligations
to any other bank or financial institution, give notice thereof
to the other Lenders, who shall have the option, to be exercised
by notice in writing, to acquire all its part of the rights,
benefits and obligations of the Transferee Lender, in which case
the Transferor Lender shall transfer the same to that Lender or
Lenders in accordance with this Clause 15.3. No such
transfer is binding on, or effective in relation to, the
Borrowers or the Agent unless (i) it is effected or
evidenced by a Transfer Certificate which complies with the
provisions of this clause 15.3 and is signed by or on
behalf of the Transferor Lender, the Transferee Lender and the
Agent (on behalf of itself, the Borrowers and the other Banks)
and (ii) such transfer of rights under the other Security
Documents has been effected and registered. Upon signature of
any such Transfer Certificate by the Agent, which signature
shall be effected as promptly as is practicable after such
Transfer Certificate has been delivered to the Agent, and
subject to the terms of such Transfer Certificate, such Transfer
Certificate shall have effect as set out below.
The following further provisions shall have effect in relation
to any Transfer Certificate:
15.3.1 a Transfer Certificate may be in respect of a
Lender’s rights in respect of all, or part of, its
Commitment and shall be in respect of the same proportion of its
Contribution;
15.3.2 a Transfer Certificate shall only be in respect of
rights and obligations of the Transferor Lender in its capacity
as a Lender and shall not transfer its rights and obligations
(if applicable) as the Agent
and/or
Security Trustee, or in any other capacity, as the case may be
and such other rights and obligations may only be transferred in
accordance with any applicable provisions of this Agreement;
15.3.3 a Transfer Certificate shall take effect in
accordance with English law as follows:
(a) to the extent specified in the Transfer Certificate,
the Transferor Lender’s payment rights and all its other
rights (other than those referred to in clause 15.3.2
above) under this Agreement are assigned to the Transferee
Lender absolutely, free of any defects in the Transferor
Lender’s title and of any rights or equities which the
Borrowers had against the Transferor Lender and the Transferee
Lender assumes all obligations of the Transferor Lender as are
transferred by such Transfer Certificate;
(b) the Transferor Lender’s Commitment is discharged
to the extent specified in the Transfer Certificate;
(c) the Transferee Lender becomes a Lender with a
Contribution
and/or a
Commitment in respect of the Loan Facility of the amounts
specified in the Transfer Certificate;
(d) the Transferee Lender becomes bound by all the
provisions of this Agreement and the Security Documents which
are applicable to the Lenders generally, including those about
pro-rata sharing and the exclusion of liability on the part of,
and the indemnification of, the Agent and the Security Trustee
and to
the extent that the Transferee Lender becomes bound by those
provisions, the Transferor Lender ceases to be bound by them;
(e) an Advance or part of an Advance which the Transferee
Lender makes after the Transfer Certificate comes into effect
ranks in point of priority and security in the same way as it
would have ranked had it been made by the Transferor Lender,
assuming that any defects in the Transferor Lender’s title
and any rights or equities of any Security Party against the
Transferor Lender had not existed; and
(f) the Transferee Lender becomes entitled to all the
rights under this Agreement which are applicable to the Lenders
generally, including but not limited to those relating to the
Majority Lenders and those under clauses 3.6, 5 and 12 and
to the extent that the Transferee Lender becomes entitled to
such rights, the Transferor Lender ceases to be entitled to them;
15.3.4 the rights and equities of the Borrowers or of any
other Security Party referred to above include, but are not
limited to, any right of set-off and any other kind of
cross-claim; and
15.3.5 the Borrowers, the Account Banks, the Security
Trustee, the Agent and the Lenders hereby irrevocably authorise
and instruct the Agent to sign any such Transfer Certificate on
their behalf and undertake not to withdraw, revoke or qualify
such authority or instruction at any time. Promptly upon its
signature of any Transfer Certificate, the Agent shall notify
the Borrowers, the Transferor Lender and the Transferee Lender.
15.4 Reliance
on Transfer Certificate
15.4.1 The Agent shall be entitled to rely on any Transfer
Certificate believed by it to be genuine and correct and to have
been presented or signed by the persons by whom it purports to
have been presented or signed, and shall not be liable to any of
the parties to this Agreement and the Security Documents for the
consequences of such reliance.
15.4.2 The Agent shall at all times during the continuation
of this Agreement maintain a register in which it shall record
the name, Commitments, Contributions and administrative details
(including the lending office) from time to time of the Lenders
holding a Transfer Certificate and the date at which the
transfer referred to in such Transfer Certificate held by each
Lender was transferred to such Lender, and the Agent shall make
the said register available for inspection by any Lender or the
Borrowers during normal banking hours upon receipt by the Agent
of reasonable prior notice requesting the Agent to do so.
15.4.3 The entries on the said register shall, in the
absence of manifest error, be conclusive in determining the
identities of the Commitments, the Contributions and the
Transfer Certificates held by the Lenders from time to time and
the principal amounts of such Transfer Certificates and may be
relied upon by all parties to this Agreement.
15.5 Transfer
fees and expenses
Any Transferor Lender who causes the transfer of all or any part
of its rights, benefits
and/or
obligations under the Security Documents in accordance with the
foregoing provisions of this clause 15, must, on each
occasion, pay to the Agent a transfer fee of one thousand five
hundred Dollars (USD 1,500) and, in addition, be responsible for
all other costs and expenses (including, but not limited to,
reasonable legal fees and expenses) associated therewith and all
value added tax thereon, as well as those of the Agent (in
addition to its fee as aforesaid) in connection with such
transfer.
15.6 Documenting
transfers
If any Lender assigns all or any part of its rights or transfers
all or any part of its rights, benefits
and/or
obligations as provided in clause 15.3, each Borrower
undertakes, immediately on being requested to do so by the Agent
and at the cost of the Transferor Lender, to enter into, and
procure that the other Security Parties shall (at the cost of
the Transferor Lender) enter into, such documents as may be
necessary or desirable to transfer to the Transferee Lender all
or the relevant part of such Lender’s interest in the
Security Documents
and all relevant references in this Agreement to such Lender
shall thereafter be construed as a reference to the Transferor
Lender
and/or its
Transferee Lender (as the case may be) to the extent of their
respective interests.
15.7 Sub-Participation
A Lender may sub-participate all or any part of its rights
and/or
obligations under the Security Documents at its own expense
without the consent of, or notice to, the Borrowers but with
prior written notice to the other Lenders.
15.8 Lending
office
Each Lender shall lend through its office at the address
specified in schedule 1 or, as the case may be, in any
relevant Transfer Certificate or through any other office of
such Lender selected from time to time by it through which such
Lender wishes to lend for the purposes of this Agreement. If the
office through which a Lender is lending is changed pursuant to
this clause 15.8, such Lender shall notify the Agent
promptly of such change and the Agent shall notify the
Borrowers, the Security Trustee, the Agent, the Account Banks
and the other Lenders.
15.9 Disclosure
of information
A Bank may disclose to any of its branches and affiliates, its
head office, any relevant fiscal authorities a prospective
assignee, transferee or to any other person who may propose
entering into contractual relations with such Bank in relation
to this Agreement
and/or the
Deutscher Rahmenvertrag such information about the Borrowers
and/or the
other Security Parties
and/or the
Loan and/or
the Security Documents as such Bank shall consider appropriate
in relation to any transfer
and/or
enforcement hereunder.
16 ARRANGER,
AGENT AND SECURITY TRUSTEE
16.1 Appointment
of the Agent
The Swap Bank and each Lender irrevocably appoints the Agent as
its agent for the purposes of this Agreement and such of the
Security Documents to which it may be appropriate for the Agent
to be party. Accordingly each of the Lenders and the Swap Bank
hereby authorise the Agent:
16.1.1 to execute such documents as may be approved by the
Majority Lenders for execution by the Agent; and
16.1.2 (whether or not by or through employees or agents)
to take such action on such Lender’s behalf and to exercise
such rights, remedies, powers and discretions as are
specifically delegated to the Agent by any Security Document,
together with such powers and discretions as are reasonably
incidental thereto.
16.2 Agent’s
actions
Any action taken by the Agent under or in relation to any of the
Security Documents whether with requisite authority or on the
basis of appropriate instructions received from the Majority
Lenders (or as otherwise duly authorised) shall be binding on
all the Banks.
16.3 Agent’s
and Agent’s duties
16.3.1 The Agent shall promptly notify each Lender of
(i) the contents of each notice, certificate or other
document received by it from the Borrowers under or pursuant to
clauses 8.1.1, 8.1.6, 8.1.9, 8.1.10, 8.1.13 and 8.1.17 and
(ii) any information it receives which is material to the
Borrowers’ ability to repay the Loan; and
16.3.2 The Agent shall (subject to the other provisions of
this clause 16) take (or instruct the Security Trustee
to take) such action or, as the case may be, refrain from taking
(or authorise the Security Trustee to refrain from taking) such
action with respect to the exercise of any of its rights,
remedies, powers and discretions as agent, as the Majority
Lenders may direct.
16.4 Security
Trustee’s and Agent’s rights
The Security Trustee and the Agent may:
16.4.1 in the exercise of any right, remedy, power or
discretion in relation to any matter, or in any context, not
expressly provided for by this Agreement or any of the other
Security Documents, act or, as the case may be, refrain from
acting (or authorise the Security Trustee to act or refrain from
acting) in accordance with the instructions of the Lenders, and
shall be fully protected in so doing;
16.4.2 unless and until it has received directions from the
Majority Lenders, take such action or, as the case may be,
refrain from taking such action (or authorise the Security
Trustee to take or refrain from taking such action) in respect
of a Default of which the Agent has actual knowledge as it shall
consider advisable in the best interests of the Lenders (but
shall not be obliged to do so);
16.4.3 refrain from acting (or authorise the Security
Trustee to refrain from acting) in accordance with any
instructions of the Lenders to institute any Proceedings arising
out of or in connection with any of the Security Documents until
it and/or
the Security Trustee has been indemnified
and/or
secured to its satisfaction against any and all costs, expenses
or liabilities (including legal fees) which it would or might
incur as a result;
16.4.4 deem and treat (i) each Lender as the person
entitled to the benefit of the Contribution of such Lender for
all purposes of this Agreement unless and until a notice shall
have been filed with the Agent pursuant to clause 15.3 and shall
have become effective, and (ii) the office set opposite the
name of each of the Lenders in schedule 1 as its lending
office unless and until a written notice of change of lending
office shall have been received by the Agent and the Agent may
act upon any such notice unless and until the same is superseded
by a further such notice;
16.4.5 rely as to matters of fact which might reasonably be
expected to be within the knowledge of any Security Party upon a
certificate signed by any director or officer of the relevant
Security Party on behalf of the relevant Security Party; and
16.4.6 do anything which is in its opinion necessary or
desirable to comply with any law or regulation in any
jurisdiction.
16.5 No
Liability of Agent or Arranger
None of the Security Trustee, the Agent, the Arranger nor any of
their respective employees and agents shall:
16.5.1 be obliged to make any enquiry as to the use of any
of the proceeds of the Loan unless (in the case of the Agent) so
required in writing by a Lender, in which case the Agent shall
promptly make the appropriate request to the Borrowers; or
16.5.2 be obliged to make any enquiry as to any breach or
default by the Borrowers or any other Security Party in the
performance or observance of any of the provisions of the
Security Documents or as to the existence of a Default unless
(in the case of the Agent) the Agent has actual knowledge
thereof or has been notified in writing thereof by a Bank, in
which case the Agent shall promptly notify the Banks of the
relevant event or circumstance; or
16.5.3 be obliged to enquire whether or not any
representation or warranty made by the Borrowers or any other
Security Party pursuant to this Agreement or any of the other
Security Documents is true; or
16.5.4 be obliged to do anything (including, without
limitation, disclosing any document or information) which would,
or might in its opinion, be contrary to any law or regulation or
be a breach of any duty of confidentiality or otherwise be
actionable or render it liable to any person; or
16.5.5 be obliged to account to any Lender for any sum or
the profit element of any sum received by it for its own
account; or
16.5.6 be obliged to institute any Proceedings arising out
of or in connection with any of the Security Documents other
than on the instructions of the Majority Lenders; or
16.5.7 be liable to any Lender for any action taken or
omitted under or in connection with any of the Security
Documents unless caused by its gross negligence or wilful
misconduct.
For the purposes of this clause 16, none of the Security
Trustee, the Arranger or the Agent shall be treated as having
actual knowledge of any matter of which the corporate finance or
any other division outside the agency or loan administration
department of the Arranger, the Security Trustee or the Agent or
the person for the time being acting as the Arranger, the
Security Trustee or the Agent may become aware in the context of
corporate finance, advisory or lending activities from time to
time undertaken by the Arranger, the Security Trustee or the
Agent or, as the case may be, the Security Trustee or Agent for
any Security Party or any other person which may be a trade
competitor of any Security Party or may otherwise have
commercial interests similar to those of any Security Party.
16.6 Non —
reliance on Arranger, Security Trustee or Agent
Each Lender and the Swap Bank acknowledges that it has not
relied on any statement, opinion, forecast or other
representation made by the Arranger, the Security Trustee or the
Agent to induce it to enter into any of the Security Documents
and that it has made and will continue to make, without reliance
on the Arranger, the Security Trustee or the Agent and based on
such documents as it considers appropriate, its own appraisal of
the creditworthiness of the Security Parties and its own
independent investigation of the financial condition, prospects
and affairs of the Security Parties in connection with the
making and continuation of such Lender’s Commitment or
Contribution under this Agreement. Neither of the Arranger, the
Security Trustee and the Agent shall have any duty or
responsibility, either initially or on a continuing basis, to
provide any Lender or the Swap Bank with any credit or other
information with respect to any Security Party whether coming
into its possession before the making of any Advance or the Loan
or at any time or times thereafter other than as provided in
clause 16.3.1.
16.7 No
responsibility on the Arranger, the Security Trustee or Agent
for Borrowers’ performance
None of the Arranger, the Security Trustee or the Agent shall
have any responsibility or liability to any Lender or the Swap
Bank:
16.7.1 on account of the failure of any Security Party to
perform its obligations under any of the Security
Documents; or
16.7.2 for the financial condition of any Security
Party; or
16.7.3 for the completeness or accuracy of any statements,
representations or warranties in any of the Security Documents
or any document delivered under any of the Security
Documents; or
16.7.4 for the execution, effectiveness, adequacy,
genuineness, validity, enforceability or admissibility in
evidence of any of the Security Documents or of any certificate,
report or other document executed or delivered under any of the
Security Documents; or
16.7.5 to investigate or make any enquiry into the title of
the Borrowers or any other Security Party to the Vessels or any
other security or any part thereof; or
16.7.6 for taking or omitting to take any other action
under or in relation to any of the Security Documents or any
aspect of any of the Security Documents; or
16.7.7 on account of the failure of the Security Trustee to
perform or discharge any of its duties or obligations under the
Security Documents; or
16.7.8 otherwise in connection with the Security Documents
or their negotiation or for acting (or, as the case may be,
refraining from acting) in accordance with the instructions of
the Lenders.
16.8 Reliance
on documents and professional advice
Each of the Arranger, the Security Trustee and the Agent shall
be entitled to rely on any communication, instrument or document
believed by it to be genuine and correct and to have been signed
or sent by the proper person and shall be entitled to rely as to
legal or other professional matters on opinions and statements
of any legal or other professional advisers selected or approved
by it (including those in the Arranger’s, the Security
Trustee’s or Agent’s employment).
16.9 Other
dealings
Each of the Arranger, the Security Trustee and the Agent may,
without any liability to account to the Lenders, accept deposits
from, and generally engage in any kind of banking or other
business with, and provide advisory or other services to, any
Security Party or any company in the same group of companies as
such Security Party or any of the Lenders as if it were not the
Arranger, the Security Trustee or Agent.
16.10 Rights
of Agent, Agent as Lender; no partnership
With respect to its own Commitment and Contribution (if any) the
Security Trustee and the Agent shall have the same rights and
powers under the Security Documents as any other Lender and may
exercise the same as though it were not performing the duties
and functions delegated to it under this Agreement and the term
“Lenders” shall, unless the context clearly otherwise
indicates, include the Security Trustee and the Agent in their
respective individual capacity as a Lender. This Agreement shall
not be construed so as to constitute a partnership between the
parties or any of them.
16.11 Amendments
and waivers
16.11.1 Subject to clause 16.11, the Arranger, the
Security Trustee
and/or the
Agent (as the case may be) may, with the consent of the Majority
Lenders (or if and to the extent expressly permitted by the
other provisions of any of the Security Documents) and, if so
instructed by the Majority Lenders, shall:
16.11.2 agree (or authorise the Security Trustee to agree)
amendments or modifications to any of the Security Documents
with the Borrowers
and/or any
other Security Party; and/or
16.11.3 vary or waive breaches of, or defaults under, or
otherwise excuse performance of, any provision of any of the
other Security Documents by the Borrowers
and/or any
other Security Party (or authorise the Security Trustee to do
so).
Any such action so authorised and effected by the Agent shall be
documented in such manner as the Security Trustee
and/or the
Agent (as the case may be) shall (with the approval of the
Majority Lenders) determine, shall be promptly notified to the
Lenders by the Security Trustee
and/or the
Agent (as the case may be) and (without prejudice to the
generality of clause 16.2) shall be binding on the Lenders.
16.11.4 Except with the prior written consent of the
Lenders, the Security Trustee and the Agent shall have no
authority on behalf of the Lenders to agree (or authorise the
Security Trustee to agree) with the Borrowers
and/or any
other Security Party any amendment or modification to any of the
Security Documents or to grant (or authorise the Security
Trustee to grant) waivers in respect of breaches or defaults or
to vary or excuse (or authorise the Security Trustee to vary or
excuse) performance of or under any of the Security Documents by
the Borrowers
and/or any
other Security Party, if the effect of such amendment,
modification, waiver or excuse would be to:
(a) reduce the Margin, postpone the due date or reduce the
amount of any payment of principal, interest or other amount
payable by any Security Party under any of the Security
Documents;
(b) change the currency in which any amount is payable by
any Security Party under any of the Security Documents;
(c) increase any Lender’s Commitment;
(d) extend any Maturity Date;
(e) change any provision of any of the Security Documents
which expressly or impliedly requires the approval or consent of
all the Lenders such that the relevant approval or consent may
be given otherwise than with the sanction of all the Lenders;
(f) change the order of distribution under
clauses 6.10 and 13.1;
(g) change this clause 16.11;
(h) change the definition of “Majority
Lenders” in clause 1.2;
(i) release any Security Party from the security
constituted by any Security Document (except as required by the
terms thereof or by law) or change the terms and conditions upon
which such security or guarantee may be, or is required to be,
released.
16.12 Reimbursement
and indemnity by Lenders
Each Lender shall reimburse the Security Trustee and the Agent
(rateably in accordance with such Lender’s Commitment or,
after the first Advance or the Loan has been drawn, its
Contribution,) to the extent that the Security Trustee or the
Agent is not reimbursed by the Borrowers, for the costs, charges
and expenses incurred by the Security Trustee or the Agent which
are expressed to be payable by the Borrowers under
clause 5.3 including (in each case), without limitation,
the fees and expenses of legal or other professional advisers
provided that, if following any payment to the Security Trustee
or the Agent by a Lender under this clause the Security Trustee
or the Agent receives payment from the Borrowers in respect of
the same costs, fees or expenses, the Security Trustee or the
Agent shall upon receipt thereof reimburse the relevant Lender.
Each Lender must on demand indemnify the Security Trustee or the
Agent (rateably in accordance with such Lender’s Commitment
or, after the first Advance or the Loan has been drawn, its
Contribution) against all liabilities, damages, costs and claims
whatsoever incurred by the Security Trustee in connection with
any of the Security Documents or the performance of its duties
under any of the Security Documents or any action taken or
omitted by the Security Trustee or, as the case may be, the
Agent, under any of the Security Documents, unless such
liabilities, damages, costs or claims arise from the Security
Trustee’s or as the case may be, the Agent’s own gross
negligence or wilful misconduct.
16.13 Retirement
of the Agent
16.13.1 The Agent may, having given to the Borrowers and
each of the Lenders not less than fifteen (15) days’
notice of its intention to do so, retire from its appointment as
the Agent under this Agreement, provided that no such retirement
shall take effect unless there has been appointed by the Lenders
as a successor agent:
(a) a company in the same group of companies as the Agent,
(b) a Lender nominated by the Majority Lenders or, failing
such a nomination,
(c) any reputable and experienced bank or financial
institution nominated by the retiring Agent.
and written confirmation (in a form acceptable to the Lenders)
of such acceptance agreeing to be bound by this Agreement in the
capacity of the Agent as if it had been an original party to
this Agreement.
Any corporation into which the retiring Agent
and/or the
retiring Security Trustee (as the case may be) may be merged or
converted or any corporation with which the Security Trustee
and/or the
Agent (as the case may be) may be consolidated or any
corporation resulting from any merger, conversion, amalgamation,
consolidation or other reorganisation to which the Security
Trustee or the Agent (as the case may be) shall be a party
shall, to the extent permitted by applicable law, be the
successor Agent or Security Trustee under this Agreement and the
other Security Documents without the execution or filing of any
document or any further act on the part of any of the parties to
the Security Documents save that notice of any such merger,
conversion, amalgamation, consolidation or other reorganisation
shall forthwith be given to each Security Party and the Lenders.
Prior to any such successor being appointed, the Agent agrees to
consult with the Borrowers
and the Lenders as to the identity of the proposed successor and
to take account of any reasonable objections which the Borrowers
and the Lenders may raise to such successor being appointed.
16.13.2 If the Majority Lenders, acting reasonably, are of
the opinion that the Security Trustee or Agent is unable to
fulfil its respective obligations under this Agreement in a
professional and acceptable manner, then they may require the
Security Trustee or Agent, by written notice, to resign in
accordance with clause 16.13.1, which the Agent shall
promptly do, and the terms of clause 16.13.1 shall apply to
the appointment of any substitute Security Trustee or Agent,
save that the same shall be appointed by the Majority Lenders
and not by all of the Lenders.
16.13.3 Upon any such successor as aforesaid being
appointed, the retiring Agent or, as the case may be, the
Security Trustee shall be discharged from any further obligation
under the Security Documents (but shall continue to have the
benefit of this clause 16 in respect of any action it has
taken or refrained from taking prior to such discharge) and its
successor and each of the other parties to this Agreement shall
have the same rights and obligations among themselves as they
would have had if such successor had been a party to this
Agreement in place of the retiring Agent or Security Trustee.
The retiring Agent or Agent shall (at its own expense) provide
its successor with copies of such of its records as its
successor reasonably requires to carry out its functions under
the Security Documents.
16.14 Appointment
and retirement of Security Trustee
16.14.1 Appointment
Each of the Lenders, the Swap Bank and the Agent irrevocably
appoints the Security Trustee as its Security Trustee and
trustee for the purposes of the Security Documents, in each case
on the terms set out in this Agreement. Accordingly, each of the
Lenders, the Swap Bank and the Agent hereby authorises the
Security Trustee (whether or not by or through employees or
agents) to take such action on its behalf and to exercise such
rights, remedies, powers and discretions as are specifically
delegated to the Security Trustee by this Agreement
and/or the
Security Documents, together with such powers and discretions as
are reasonably incidental thereto.
16.14.2 Retirement
Without prejudice to clause 16.13, the Security Trustee
may, having given to the Borrowers and each of the Lenders and
the Swap Bank not less than fifteen (15) days’ notice
of its intention to do so, retire from its appointment as
Security Trustee under this Agreement and any Trust Deed,
provided that no such retirement shall take effect unless there
has been appointed by the Lenders and the Agent as a successor
Security Trustee and trustee:
(a) a company in the same group of companies of the
Security Trustee nominated by the Security Trustee which the
Lenders hereby irrevocably and unconditionally agree to appoint
or, failing such nomination,
(b) a Lender or trust corporation nominated by the Majority
Lenders or, failing such a nomination,
(c) any bank or trust corporation nominated by the retiring
Security Trustee,
and, in any case, such successor Security Trustee and trustee
shall have duly accepted such appointment by delivering to the
Agent (i) written confirmation (in a form acceptable to the
Agent) of such acceptance agreeing to be bound by this Agreement
in the capacity of Security Trustee as if it had been an
original party to this Agreement and (ii) a duly executed
Trust Deed.
Any corporation into which the retiring Security Trustee may be
merged or converted or any corporation with which the Security
Trustee may be consolidated or any corporation resulting from
any merger, conversion, amalgamation, consolidation or other
reorganisation to which the Security Trustee shall be a party
shall, to the extent permitted by applicable law, be the
successor Security Trustee under this Agreement, any
Trust Deed and the other Security Documents without the
execution or filing of any document or any further act on the
part of any of the parties to this Agreement, any
Trust Deed and the other Security Documents save
that notice of any such merger, conversion, amalgamation,
consolidation or other reorganisation shall forthwith be given
to each Security Party, the Swap Bank and the Lenders. Prior to
any such successor being appointed, the Security Trustee agrees
to consult with the Borrowers as to the identity of the proposed
successor and to take account of any reasonable objections which
the Borrowers may raise to such successor being appointed.
Upon any such successor as aforesaid being appointed, the
retiring Security Trustee shall be discharged from any further
obligation under the Security Documents (but shall continue to
have the benefit of this clause 16 in respect of any action
it has taken or refrained from taking prior to such discharge)
and its successor and each of the other parties to this
Agreement shall have the same rights and obligations among
themselves as they would have had if such successor had been a
party to this Agreement in place of the retiring Security
Trustee. The retiring Security Trustee shall (at its own
expense) provide its successor with copies of such of its
records as its successor reasonably requires to carry out its
functions under the Security Documents.
16.15 Powers
and duties of the Security Trustee
16.15.1 The Security Trustee shall have no duties,
obligations or liabilities to any of the Lenders and the Agent
beyond those expressly stated in any of the Security Documents.
Each of the Agent and the Swap Bank, the Lenders hereby
authorises the Security Trustee to enter into and execute:
(a) each of the Security Documents to which the Security
Trustee is or is intended to be a party; and
(b) any and all such other Security Documents as may be
approved by the Agent in writing (acting on the instructions of
the Majority Lenders) for entry into by the Security Trustee,
and, in each and every case, to hold any and all security
thereby created upon trust for the Lenders, the Swap Bank and
the Agent for the time being in the manner contemplated by this
Agreement.
16.15.2 Subject to clause 16.15.3 the Security Trustee
may, with the prior consent of the Majority Lenders communicated
in writing by the Agent, concur with any of the Security Parties
to:
(a) amend, modify or otherwise vary any provision of the
Security Documents to which the Security Trustee is or is
intended to be a party; or
(b) waive breaches of, or defaults under, or otherwise
excuse performance of, any provision of the Security Documents
to which the Security Trustee is or is intended to be a
party; or
(c) give any consents to any Security Party in respect of
any provision of any Security Document.
Any such action so authorised and effected by the Security
Trustee shall be promptly notified to the Lenders, the Swap Bank
and the Agent by the Security Trustee and shall be binding on
the other Banks.
16.15.3 The Security Trustee shall not concur with any
Security Party with respect to any of the matters described in
clause 16.11.4 without the consent of the Lenders
communicated in writing by the Agent.
16.15.4 The Security Trustee shall (subject to the other
provisions of this clause 16) take such action or, as
the case may be, refrain from taking such action, with respect
to any of its rights, powers and discretions as Security Trustee
and trustee, as the Agent may direct. Subject as provided in the
foregoing provisions of this clause, unless and until the
Security Trustee has received such instructions from the Agent,
the Security Trustee may, but shall not be obliged to, take (or
refrain from taking) such action under or pursuant to the
Security Documents referred to in clause 16.14 as the
Security Trustee shall deem advisable in the best interests of
the Banks provided that (for the avoidance of doubt), to the
extent that this clause might otherwise be construed as
authorising the Security Trustee to take, or refrain from
taking, any action of the nature referred to in
clause 16.15.2 — and for which the prior consent
of the Lenders is expressly required under
clause 16.15.3 — clauses 16.15.2 and 16.15.3
shall apply to the exclusion of this clause.
16.15.5 None of the Lenders, the Swap Bank nor the Agent
shall have any independent power to enforce any of the Security
Documents referred to in clause 16.14 or to exercise any
rights, discretions or powers or to grant any consents or
releases under or pursuant to such Security Documents or any of
them or otherwise have
direct recourse to the security
and/or
guarantees constituted by such Security Documents or any of them
except through the Security Trustee.
16.15.6 For the purpose of this clause 16, the
Security Trustee may, rely and act in reliance upon any
information from time to time furnished to the Security Trustee
by the Agent (whether pursuant to clause 16.15.7 or
otherwise) unless and until the same is superseded by further
such information, so that the Security Trustee shall have no
liability or responsibility to any party as a consequence of
placing reliance on and acting in reliance upon any such
information unless the Security Trustee has actual knowledge
that such information is inaccurate or incorrect.
16.15.7 Without prejudice to the foregoing each of the
Agent, the Swap Bank and the Lenders (whether directly or
through the Agent) shall provide the Security Trustee with such
written information as it may reasonably require for the purpose
of carrying out its duties and obligations under the Security
Documents referred to in clause 16.14.
16.16 Trust
provisions
16.16.1 The trusts constituted or evidenced in or by this
Agreement and the Trust Deed shall remain in full force and
effect until whichever is the earlier of:
(a) the expiration of a period of eighty (80) years
from the date of this Agreement; and
(b) receipt by the Security Trustee of confirmation in
writing by the Agent that there is no longer outstanding any
Indebtedness (actual or contingent) which is secured or
guaranteed or otherwise assured by or under any of the Security
Documents,
and the parties to this Agreement declare that the perpetuity
period applicable to this Agreement and the trusts declared by
the Trust Deed shall for the purposes of the Perpetuities
and Accumulations Xxx 0000 be the period of eighty
(80) years from the date of this Agreement.
16.16.2 In its capacity as trustee in relation to the
Security Documents specified in clause 16.14, the Security
Trustee shall, without prejudice to any of the powers,
discretions and immunities conferred upon trustees by law (and
to the extent not inconsistent with the provisions of any of
those Security Documents), have all the same powers and
discretions as a natural person acting as the beneficial owner
of such property
and/or as
are conferred upon the Security Trustee by any of those Security
Documents.
16.16.3 It is expressly declared that, in its capacity as
trustee in relation to the Security Documents specified in
clause 16.14, the Security Trustee shall be entitled,
subject to the consent of the Lenders, to invest moneys forming
part of the security and which, in the opinion of the Security
Trustee, may not be paid out promptly following receipt in the
name or under the control of the Security Trustee in any of the
investments for the time being authorised by law for the
investment by trustees of trust moneys or in any other property
or investments whether similar to the aforesaid or not or by
placing the same on deposit in the name or under the control of
the Security Trustee as the Security Trustee may think fit
without being under any duty to diversify its investments and
the Security Trustee may at any time vary or transpose any such
property or investments for or into any others of a like nature
and shall not be responsible for any loss due to depreciation in
value or otherwise of such property or investments. Any
investment of any part or all of the security may, at the
discretion of the Security Trustee, be made or retained in the
names of nominees.
16.17 Independent
action by Banks
None of the Banks shall enforce, exercise any rights, remedies
or powers or grant any consents or releases under or pursuant
to, or otherwise have a direct recourse to the security
and/or
guarantees constituted by any of the Security Documents without
the prior written consent of the Majority Lenders but, provided
such consent has been obtained, it shall not be necessary for
any other Bank to be joined as an additional party in any
Proceedings for this purpose.
16.18 Common
Agent and Security Trustee
The Agent and the Security Trustee have entered into the
Security Documents in their separate capacities (a) as
agent for the Lenders under and pursuant to this Agreement (in
the case of the Agent) and (b) as Security Trustee and
trustee for the Lenders, the Swap Bank and the Agent under and
pursuant to this Agreement, to hold the guarantees
and/or
security created by the Security Documents specified in clause
16.14 on the terms set out in such Security Documents (in the
case of the Security Trustee). If and when the Agent and the
Security Trustee are the same entity and any Security Document
provides for the Agent to communicate with or provide
instructions to the Security Trustee (and vice versa), all
parties to this Agreement agree that any such communications or
instructions on such occasions are unnecessary and are hereby
waived.
16.19 Co-operation
to achieve agreed priorities of application
The Lenders and the Agent shall co-operate with each other and
with the Security Trustee and any receiver under the Security
Documents in realising the property and assets subject to the
Security Documents and in ensuring that the net proceeds
realised under the Security Documents after deduction of the
expenses of realisation are applied in accordance with
clause 13.1.
16.20 The
Prompt distribution of proceeds
Moneys received by any of the Banks (whether from a receiver or
otherwise) pursuant to the exercise of (or otherwise by virtue
of the existence of) any rights and powers under or pursuant to
any of the Security Documents shall (after providing for all
costs, charges, expenses and liabilities and other payments
ranking in priority) be paid to the Agent for distribution (in
the case of moneys so received by any of the Banks other than
the Agent or the Security Trustee) and shall be distributed by
the Agent or, as the case may be, the Security Trustee (in the
case of moneys so received by the Agent or, as the case may be,
the Security Trustee) in each case in accordance with
clause 13.1. The Agent or, as the case may be, the Security
Trustee shall make each such application
and/or
distribution as soon as is practicable after the relevant moneys
are received by, or otherwise become available to, the Agent or,
as the case may be, the Security Trustee save that (without
prejudice to any other provision contained in any of the
Security Documents) the Agent or, as the case may be, the
Security Trustee (acting on the instructions of the Majority
Lenders) or any receiver may credit any moneys received by it to
a suspense account for so long and in such manner as the Agent
or such receiver may from time to time determine with a view to
preserving the rights of the Agent
and/or the
Security Trustee
and/or the
Account Banks
and/or the
Arranger
and/or the
Lenders, the Swap Bank or any of them to provide for the whole
of their respective claims against the Borrowers or any other
person liable.
16.21 Reconventioning
After consultation with the Borrowers and the Lenders and
notwithstanding clause 16.11, the Agent shall be entitled
to make such amendments to this Agreement as it may determine to
be necessary to take account of any changes in market practices
as a consequence of the European Monetary Union (whether as to
the settlement or rounding of obligations, business days, the
calculation of interest or otherwise whatsoever). So far as
possible such amendments shall be such as to put the parties in
the same position as if the event or events giving rise to the
need to amend this Agreement had not occurred. Any amendment so
made to this Agreement by the Agent shall be promptly notified
to the other parties hereto and shall be binding on all parties
hereto.
16.22 Exclusivity
Without prejudice to the Borrowers’ rights, in certain
instances, to give their consent thereunder, clauses 15 and
16 are for the exclusive benefit of the Banks.
17 NOTICES
AND OTHER MATTERS
17.1 Notices
17.1.1 unless otherwise specifically provided herein, every
notice under or in connection with this Agreement shall be given
in English by letter delivered personally
and/or sent
by post
and/or
transmitted by fax
and/or
electronically;
17.1.2 in this clause “notice” includes any
demand, consent, authorisation, approval, instruction,
certificate, request, waiver or other communication.
17.2 Addresses
for communications, effective date of notices
17.2.1 Subject to clause 17.2.2, clause 17.2.5
and 17.3 notices to the Borrowers shall be deemed to have been
given and shall take effect when received in full legible form
by the Borrowers at the address
and/or the
fax number appearing below (or at such other address or fax
number as the Borrowers may hereafter specify for such purpose
to the Agent by notice in writing);
| Address | x/x Xxxxxx XxxxXxxxxxxxxx Xxx. |
00 Xxxx Xxxxxxx
Xxxxxxx
Xxxxxx
Fax no: + 00 000 000 0000
17.2.2 notwithstanding the provisions of clause 17.2.1
or clause 17.2.5, a notice of Default
and/or a
notice given pursuant to clause 10.2 or clause 10.3 to the
Borrowers shall be deemed to have been given and shall take
effect when delivered, sent or transmitted by the Banks or any
of them to the Borrowers to the address or fax number referred
to in clause 17.2.1;
17.2.3 subject to clause 17.2.5, notices to the Agent
and/or the
Arranger
and/or
Account Banks
and/or
Security Trustee
and/or the
Swap Bank shall be deemed to be given, and shall take effect,
when received in full legible form by the Agent
and/or the
Security Trustee at the address
and/or the
fax number address appearing below (or at any such other address
or fax number as the Agent
and/or the
Security Trustee (as appropriate) may hereafter specify for such
purpose to the Borrowers and the other Lenders by notice in
writing);
Agent: DEUTSCHE SCHIFFSBANK AG
| Address: | Xxxxxxx 00 |
X-00000 Xxxxxx
Xxxxxxx
Fax: x00 000
0000-000
Attn: International Loans
17.2.4 subject to clause 17.2.5 and 17.3, notices to a
Lender shall be deemed to be given and shall take effect when
received in full legible form by such Lender at its address
and/or fax
number specified in schedule 1 or in any relevant Transfer
Certificate (or at any other address or fax number as such
Lender may hereafter specify for such purpose to the other
Banks); and
17.2.5 if under clause 17.2.1 or clause 17.2.3 a
notice would be deemed to have been given and been effective on
a day which is not a working day in the place of receipt or is
outside the normal business hours in the place of receipt, the
notice shall be deemed to have been given and to have taken
effect at the opening of business on the next working day in
such place.
17.3 Electronic
Communication
17.3.1 Any communication to be made by
and/or
between the Banks or any of them and the Security Parties or any
of them under or in connection with the Security Documents or
any of them may be made by electronic mail or other electronic
means, if and provided that all such parties:
(a) notify each other in writing of their electronic mail
address
and/or any
other information required to enable the sending and receipt of
information by that means; and
(b) notify each other of any change to their electronic
mail address or any other such information supplied by them.
17.3.2 Any electronic communication made by
and/or
between the Banks or any of them and the Security Parties or any
of them will be effective only when actually received in
readable form and, in the case of any electronic communication
made by the Borrowers or the Lenders to the Agent, only if it is
addressed in such manner as the Agent shall specify for this
purpose.
17.4 Notices
through the Agent
Every notice under this Agreement or (unless otherwise provided
therein) any other Security Document to be given by the
Borrowers to any other party, shall be given to the Agent for
onward transmission as appropriate and every notice under this
Agreement to be given to the Borrowers shall (except as
otherwise provided in the Security Documents) be given to the
Borrowers by the Agent.
18 BORROWERS’
OBLIGATIONS
18.1 Joint
and several
Regardless of any other provision in any of the Security
Documents, all obligations and liabilities whatsoever of the
Borrowers herein contained are joint and several and shall be
construed accordingly. Each of the Borrowers agrees and consents
to be bound by the Security Documents to which it becomes a
party notwithstanding that the other Borrower may not do so or
be effectually bound and notwithstanding that any of the
Security Documents may be invalid or unenforceable against the
other Borrower, whether or not the deficiency is known to any
Bank.
18.2 Borrowers
as principal debtors
Each Borrower acknowledges that it is a principal and original
debtor in respect of all amounts which may become payable by the
Borrowers in accordance with the terms of any of the Security
Documents and agrees that each Bank may continue to treat it as
such, whether or not such Bank is or becomes aware that such
Borrower is or has become a surety for the other Borrower.
18.3 Indemnity
The Borrowers undertake to keep the Banks fully indemnified on
demand against all claims, damages, losses, costs and expenses
arising from any failure of any Borrower to perform or discharge
any purported obligation or liability of that Borrower which
would have been the subject of this Agreement or any other
Security Document had it been valid and enforceable and which is
not or ceases to be valid and enforceable against the other
Borrower on any ground whatsoever, whether or not known to any
Bank including, without limitation, any irregular exercise or
absence of any corporate power or lack of authority of, or
breach of duty by, any person purporting to act on behalf of the
other Borrower (or any legal or other limitation, whether under
the Limitation Acts or otherwise or any disability or death,
bankruptcy, unsoundness of mind, insolvency, liquidation,
dissolution, winding up, administration, receivership,
amalgamation, reconstruction or any other incapacity of any
person whatsoever (including, in the case of a partnership, a
termination or change in the composition of the partnership) or
any change of name or style or constitution of any Security
Party)).
18.4 Liability
unconditional
None of the obligations or liabilities of the Borrowers under
any Security Document shall be discharged or reduced by reason
of:
18.4.1 the death, bankruptcy, unsoundness of mind,
insolvency, liquidation, dissolution,
winding-up,
administration, receivership, amalgamation, reconstruction or
other incapacity of any person whatsoever (including, in the
case of a partnership, a termination or change in the
composition of the partnership) or any change of name or style
or constitution of any Borrower or any other person liable;
18.4.2 any Bank granting any time, indulgence or concession
to, or compounding with, discharging, releasing or varying the
liability of, any Borrower or any other person liable or
renewing, determining, varying or increasing any accommodation,
facility or transaction or otherwise dealing with the same in
any manner whatsoever or concurring in, accepting, varying any
compromise, arrangement or settlement or omitting to claim or
enforce payment from any Borrower or any other person
liable; or
18.4.3 anything done or omitted which but for this
provision might operate to exonerate the Borrowers or all of
them.
18.5 Recourse
to other security
No Bank shall be obliged to make any claim or demand or to
resort to any security or other means of payment now or
hereafter held by or available to them for enforcing any of the
Security Documents against any Borrower or any other person
liable and no action taken or omitted by any Bank in connection
with any such security or other means of payment will discharge,
reduce, prejudice or affect the liability of the Borrowers under
the Security Documents to which any of them is, or is to be, a
party.
18.6 Waiver
of Borrowers’ rights
Each Borrower agrees with the Banks that, throughout the
Facility Period, it will not, without the prior written consent
of the Agent:
18.6.1 exercise any right of subrogation, reimbursement and
indemnity against the other Borrower or any other person liable
under the Security Documents;
18.6.2 demand or accept repayment in whole or in part of
any Indebtedness now or hereafter due to such Borrower from the
other Borrower or from any other person liable for such
Indebtedness or demand or accept any guarantee against financial
loss or any document or instrument created or evidencing an
Encumbrance in respect of the same or dispose of the same;
18.6.3 take any steps to enforce any right against the
other Borrower or any other person liable in respect of any such
moneys; or
18.6.3 claim any set-off or counterclaim against the other
Borrower or any other person liable or claim or prove in
competition with any Bank in the liquidation of the other
Borrower or any other person liable or have the benefit of, or
share in, any payment from or composition with, the other
Borrower or any other person liable or any security granted
under any Security Document now or hereafter held by any Bank
for any moneys owing under this Agreement or for the obligations
or liabilities of any other person liable but so that, if so
directed by the Agent, it will prove for the whole or any part
of its claim in the liquidation of the other Borrower or other
person liable on terms that the benefit of such proof and all
money received by it in respect thereof shall be held on trust
for the Banks and applied in or towards discharge of any moneys
owing under this Agreement in such manner as the Agent shall
require.
19 GOVERNING
LAW
This Agreement is governed by and shall be construed in
accordance with English law.
20 JURISDICTION
20.1 Exclusive
Jurisdiction
For the benefit of the Banks, and subject to clause 20.4
below, the Borrowers hereby irrevocably agree that the courts of
England shall have exclusive jurisdiction:
20.1.1 to settle any disputes or other matters whatsoever
arising under or in connection with this Agreement and any
disputes or other such matters arising in connection with the
negotiation, validity or enforceability of this Agreement or any
part thereof, whether the alleged liability shall arise under
the laws of England or under the laws of some other country and
regardless of whether a particular cause of action may
successfully be brought in the English courts; and
20.1.2 to grant interim remedies or other provisional or
protective relief.
20.2 Submission
and service of process
Each Borrower accordingly irrevocably and unconditionally
submits to the jurisdiction of the English courts. Without
prejudice to any other mode of service each Borrower:
20.2.1 irrevocably empowers and appoints HFW Nominees Ltd
at present of Friary Court, 65 Crutched Friars, Xxxxxx XX0X 0XX,
Xxxxxxx as its agent to receive and accept on its behalf any
process or other document relating to any proceedings before the
English courts in connection with this Agreement;
20.2.2 agrees to maintain such an agent for service of
process in England from the date hereof until the end of the
Facility Period;
20.2.3 agrees that failure by a process agent to notify the
Borrowers of service of process will not invalidate the
proceedings concerned;
20.2.4 without prejudice to the effectiveness of service of
process on its agent under clause 20.2.1 above but as an
alternative method, consents to the service of process relating
to any such proceedings by mailing or delivering a copy of the
process to its address for the time being applying under
clause 17.2;
20.2.5 agrees that if the appointment of any person
mentioned in clause 20.2.1 ceases to be effective, the
Borrowers shall immediately appoint a further person in England
to accept service of process on its behalf in England and,
failing such appointment within seven (7) days the Agent
shall thereupon be entitled and is hereby irrevocably authorised
by the Borrowers in those circumstances to appoint such person
by notice to the Borrowers.
20.3 Forum
non conveniens and enforcement abroad
Each Borrower:
20.3.1 waives any right and agrees not to apply to the
English court or other court in any jurisdiction whatsoever to
stay or strike out any proceedings commenced in England on the
ground that England is an inappropriate forum
and/or that
Proceedings have been or will be started in any other
jurisdiction in connection with any dispute or related matter
falling within clause 20.1; and
20.3.2 agrees that a judgment or order of an English court
in a dispute or other matter falling within clause 20.1
shall be conclusive and binding on the Borrowers and may be
enforced against them in the courts of any other jurisdiction.
20.4 Right
of Security Trustee, but not Borrowers, to bring proceedings in
any other jurisdiction
20.4.1 Nothing in this clause 20 limits the right of
any Lender to bring Proceedings, including third party
proceedings, against any one or all Borrowers, or to apply for
interim remedies, in connection with this Agreement in any other
court and/or
concurrently in more than one jurisdiction;
20.4.2 the obtaining by any Lender of judgment in one
jurisdiction shall not prevent such Lender from bringing or
continuing proceedings in any other jurisdiction, whether or not
these shall be founded on the same cause of action.
20.5 Enforceability
despite invalidity of Agreement
Without prejudice to the generality of clause 13.9, the
jurisdiction agreement contained in this clause 20 shall be
severable from the rest of this Agreement and shall remain
valid, binding and in full force and shall continue to apply
notwithstanding this Agreement or any part thereof being held to
be avoided, rescinded, terminated, discharged, frustrated,
invalid, unenforceable, illegal
and/or
otherwise of no effect for any reason.
20.6 Effect
in relation to claims by and against non-parties
20.6.1 For the purpose of this clause “Foreign
Proceedings” shall mean any Proceedings except proceedings
brought or pursued in England arising out of or in connection
with (i) or in any way related to any of the Security
Documents or any assets subject thereto or (ii) any action
of any kind whatsoever taken by any Bank pursuant thereto or
which would, if brought by any or all of the Borrowers against
the Banks, have been required to be brought in the English
courts;
20.6.2 no Borrower shall bring or pursue any Foreign
Proceedings against any Bank and shall use its best endeavours
to prevent persons not party to this Agreement from bringing or
pursuing any Foreign Proceedings against any Bank;
20.6.3 If, for any reason whatsoever, any Security Party
and/or any
person connected howsoever with any Security Party brings or
pursues against any Bank any Foreign Proceedings, the Borrowers
shall indemnify such Bank on demand in respect of any and all
claims, losses, damages, demands, causes of action, liabilities,
costs and expenses (including, but not limited to, legal costs)
of whatsoever nature howsoever arising from or in connection
with such Foreign Proceedings which such Bank (or the Agent on
its behalf) certifies as having been incurred by it;
20.6.4 the Banks and the Borrowers hereby agree and declare
that the benefit of this clause 20 shall extend to and may
be enforced by any officer, employee, agent or business
associate of any of the Banks against whom a Borrower brings a
claim in connection howsoever with any of the Security Documents
or any assets subject thereto or any action of any kind
whatsoever taken by, or on behalf of or for the purported
benefit of any Bank pursuant thereto or which, if it were
brought against any Bank, would fall within the material scope
of clause 20.1. In those circumstances this clause 20
shall be read and construed as if references to any Bank were
references to such officer, employee, agent or business
associate, as the case may be.
Execution Pages
IN WITNESS whereof the parties to this Agreement have
caused this Agreement to be duly executed on the date first
above written.
|
SIGNED as a deed for and on behalf of
|
)
/s/ Xxxxxxxxxx
Xxxxx
|
|
| AMORGOS SHIPPING CORPORATION | ) | |
|
by Xxxxxxxxxx Xxxxx
|
) | |
|
(as Borrower under and pursuant to
|
) | |
| a power of attorney dated | ) | |
| 30 March 2010) in the presence of |
)
/s/ Ronan
Le Dû
|
|
|
SIGNED as a deed for and on behalf of
|
)
/s/ Xxxxxxxxxx
Xxxxx
|
|
|
XXXXXX SHIPPING CORPORATION
|
) | |
|
by Xxxxxxxxxx Xxxxx
|
||
|
(as Borrower under and pursuant to
|
) | |
|
a power of attorney dated
|
) | |
| 30 March 2010) in the presence of |
)
/s/ Ronan
Le Dû
|
|
|
SIGNED as a deed for and on behalf of
|
)
/s/ Xxxxxxxxxx
Xxxxx
|
|
| ANTIPAROS SHIPPING CORPORATION | ) | |
|
by Xxxxxxxxxx Xxxxx
|
||
|
(as Borrower under and pursuant to
|
) | |
|
a power of attorney dated
|
) | |
| 30 March 2010) in the presence of |
)
/s/ Ronan
Le Dû
|
|
|
SIGNED as a deed for and on behalf of
|
)
/s/ Xxxxxxxxxx
Xxxxx
|
|
|
IKARIA SHIPPING CORPORATION
|
) | |
|
by Xxxxxxxxxx Xxxxx
|
||
|
(as Borrower under and pursuant to
|
) | |
|
a power of attorney dated
|
) | |
| 30 March 2010) in the presence of |
)
/s/ Ronan
Le Dû
|
|
|
SIGNED as a deed for and on behalf of
|
)
/s/ Xxxxxxxxxx
Xxxxx
|
|
|
KOS SHIPPING CORPORATION
|
) | |
|
by Xxxxxxxxxx Xxxxx
|
||
|
(as Borrower under and pursuant to
|
) | |
|
a power of attorney dated
|
) | |
| 30 March 2010) in the presence of |
)
/s/ Ronan
Le Dû
|
|
|
SIGNED as a deed for and on behalf of
|
)
/s/ Xxxxxxxxxx
Xxxxx
|
|
| MYTILENE SHIPPING CORPORATION | ) | |
|
by Xxxxxxxxxx Xxxxx
|
||
|
(as Borrower under and pursuant to
|
) | |
|
a power of attorney dated
|
) | |
| 30 March 2010) in the presence of |
)
/s/ Ronan
Le Dû
|
|
|
SIGNED by Xxxxxxxx Xxxxx
|
)
/s/ Xxxxxxxx
Xxxxx
|
|
|
for and on behalf of
|
) | |
|
DEUTSCHE SCHIFFSBANK AG
|
) | |
|
(as a Lender) in the presence of
|
)
/s/ Ronan
Le Dû
|
|
SIGNED by
|
)
/s/ Xxxxxxxxxxxx
Xxxxxxxx
|
|
|
for and on behalf of
|
)
/s/ Xxxxxxxxxxxx
Xxxxxx
|
|
|
ALPHA BANK AE
|
) | |
|
(as a Lender) in the presence of
|
)
/s/ Ronan
Le Dû
|
|
|
SIGNED by Xxxxxxxx Xxxxx
|
)
/s/ Xxxxxxxx
Xxxxx
|
|
|
for and on behalf of
|
) | |
|
CREDIT AGRICOLE CORPORATE
|
) | |
|
AND INVESTMENT BANK
|
) | |
|
(as a Lender) in the presence of
|
)
/s/ Ronan
Le Dû
|
|
|
SIGNED by Xxxxxxxx Xxxxx
|
)
/s/ Xxxxxxxx
Xxxxx
|
|
|
for and on behalf of
|
) | |
|
DEUTSCHE SCHIFFSBANK AG
|
) | |
|
(as Account Bank, Arranger, Agent,
|
) | |
|
Swap Bank and Security Trustee
|
) | |
|
in the presence of
|
)
/s/ Ronan
Le Dû
|
|
|
SIGNED by
|
)
/s/ Xxxxxxxxxxxx
Xxxxxxxx
|
|
|
for and on behalf of
|
)
/s/ Xxxxxxxxxxxx
Xxxxxx
|
|
|
ALPHA BANK AE
|
) | |
|
(as Account Bank) in the presence of
|
)
/s/ Ronan
Le Dû
|
