Exhibit 10.1
Private and Confidential
DATED
8 July 2011
ANTIKITHIRA SHIPPING CORPORATION
and
KITHIRA SHIPPING CORPORATION
as Borrowers
ABN AMRO BANK N.V.
as Lender
and
ABN AMRO BANK N.V.
as Agent and Security Trustee
TERM LOAN FACILITY
IN TWO ADVANCES
INCE & CO
PIRAEUS
Index
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1 Purpose, definitions, construction & majority lenders |
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1 |
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2 The available commitment and cancellation |
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19 |
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3 Interest and interest periods |
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22 |
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4 Repayment and prepayment |
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25 |
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5 Fees and expenses |
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28 |
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6 Payments and taxes; accounts and calculations |
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29 |
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7 Representations and warranties |
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33 |
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8 Undertakings |
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39 |
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9 Conditions |
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50 |
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10 Events of default |
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51 |
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11 Indemnities |
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57 |
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12 Unlawfulness and increased costs |
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58 |
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13 Application of moneys, set off, pro-rata payments and miscellaneous |
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60 |
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14 Accounts and retentions |
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64 |
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15 Assignment, transfer and lending office |
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66 |
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16 Agent and security trustee |
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71 |
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17 Notices and other matters |
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85 |
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18 Borrowers’ obligations |
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87 |
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19 Governing law |
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90 |
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20 Jurisdiction |
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90 |
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Schedule 1 The lenders and their commitments |
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Schedule 2 Form of drawdown notice |
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Schedule 3 Conditions precedent |
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Schedule 4 Form of transfer certificate |
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Schedule 5 Form of trust deed |
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Schedule 6 Form of compliance certificate |
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Schedule 7 Vessel details |
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THIS
AGREEMENT dated 8 July 2011 is made
BY and
BETWEEN:
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ANTIKITHIRA SHIPPING CORPORATION and KITHIRA SHIPPING CORPORATION as Borrowers; |
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| (2) |
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ABN AMRO BANK N.V. as Lender; and |
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| (3) |
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ABN AMRO BANK N.V. as Agent and Security Trustee. |
NOW IT IS HEREBY AGREED AS FOLLOWS:
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PURPOSE, DEFINITIONS, CONSTRUCTION & MAJORITY LENDERS |
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| 1.1 |
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Purpose |
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This Agreement sets out the terms and conditions on which ABN AMRO Bank N.V. agrees to
make available to the Borrowers a loan of up to fifty five million one hundred thousand
Dollars (USD 55,100,000) in two Advances, for the purpose of part-financing the purchase
price of two Product Tankers. |
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| 1.2 |
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Definitions |
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In this Agreement, unless the context otherwise requires:
“Account Bank” means ABN AMRO Bank N.V. acting through its branch at
93 Xxxxxxxxxx, 0000 Xxxxxxxxx, xxx Xxxxxxxxxxx or such other bank as
may be designated by the Agent as the Earnings Account Bank for the
purposes of this Agreement and which is of a rating acceptable to the
Lenders, in their sole discretion; |
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“Advance A” means the advance equal to the lesser of (i)
USD27,550,000 and (ii) 73% of the Valuation Amount of Vessel A no more
than 14 days prior to her acquisition by Antikithira, to be applied in
or towards the acquisition of Vessel A or, as the context requires,
the amount thereof outstanding from time to time; |
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“Advance B” means the advance equal to the lesser of (i)
USD27,550,000 and (ii) 73% of the Valuation Amount of Vessel B no more
than 14 days prior to her acquisition by Kithira, to be applied in or
towards the acquisition of Vessel B or, as the context requires, the
amount thereof outstanding from time to time; |
1
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“Advances” means together, Advance A and Advance B and, in the singular, means any of
them; |
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“Agent” means ABN AMRO Bank N.V. acting for the purposes of this Agreement through
its branch at 93 Coolsingel, 3012 Rotterdam, the Netherlands (or of such other address as
may last have been notified to the other parties to this Agreement) or such other person
as may be appointed as agent by the Banks pursuant to clause 16.13; |
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“Approved Broker” means each of (i) H Clarkson & Co. Ltd. of St Magnus House, 3 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, (ii) Arrow Research Ltd. of Xxxxxxx Xxxxx,
Xxxxxxx Xxxxxxx, Xxxxxx XX00 0XX, Xxxxxxx and (iii) Fearnleys AS of Grev Wedels Xxxxx 9,
X.X. Xxx 0000 Xxxxxxx, Xxxx X-0000 Xxxxxx or such other reputable, independent and first
class firm of shipbrokers specialising in the valuation of vessels of the relevant type
agreed with the Borrowers; |
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“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 London, Amsterdam, Piraeus and New York City (or any other
relevant place of payment under clause 6); |
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“Banks” means, together, the Agent, the Security Trustee, the Lenders and any Transferee
Lenders; |
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“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; |
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“Borrower” means each of Antikithira Shipping Corporation (“Antikithira”) and Kithira
Shipping Corporation (“Kithira”) each 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 in the plural means both of them; |
2
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“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: |
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(a) |
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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 |
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(b) |
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as a result of the Borrowers failing or being incapable of drawing an
Advance after a relevant Drawdown Notice has been given; |
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“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; |
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“Charter Assignment” means a specific assignment of each Charter and each Extended
Employment Contract required to be executed hereunder by either 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; |
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“Classification” means, in relation to each Vessel, the highest class available for a
vessel of her type with the relevant Classification Society; |
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“Classification Society” means, in relation to each Vessel, any International Association
of Classification Societies 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; |
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“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 Advance
in relation to each Lender one half 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 |
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Borrowers hereunder in respect of the Loan Facility, in each case as such amount may have
been reduced and/or cancelled under this Agreement; |
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“Compliance Certificate” means a certificate substantially in the form set out in schedule
6 signed by the chief financial officer of the Corporate Guarantor; |
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“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) ninety (90) days or, (ii) if relevant underwriters
confirm in writing (in customary terms) prior to the end of such ninety (90) day period
that such capture, seizure, detention or confiscation will be covered by the relevant
Owner’s war risks insurance the shorter of twelve (12) months and such period at the end
of which cover is confirmed to attach; |
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“Contribution” means, at any relevant time, in relation to each Lender, the principal
amount of the Loan owing to such Lender at such time; |
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“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; |
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“Corporate Guarantor” 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; |
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“Cost of Funds” means the rate per annum determined by the Agent to be the rate at which
deposits in Dollars are offered to the Agent by leading banks in the London Interbank
Market at the Agent’s request at or about 11.00 a.m. (London time) on the day on which
quotations would ordinarily be given by leading banks in the London Interbank Market for
deposits in the relevant currency to which such rate is to be determined for delivery on
the first day of that period; |
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“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; |
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“Delivery Date” means, in relation to a Vessel, the date on which title to and possession
of that Vessel is transferred from the relevant Seller to the relevant Borrower; |
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“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); |
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“Drawdown Date” means, in relation to each Advance, any date being a Banking Day falling
during the Drawdown Period, on which that Advance is, or is to be, made available; |
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“Drawdown Notice” means, in relation to each Advance, a notice substantially in the form
of schedule 2; |
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“Drawdown Period” means the period commencing on the Execution Date and ending on the
earliest of (a) 31 July 2011, (b) the Delivery Date in respect of the second Ship to be
delivered by the relevant Seller and (c) any date on which (i) the amount of the Loan is
equal to the Total Commitment or (ii) the Total Commitment is reduced to zero pursuant to
clauses 10.2 or 12; |
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“Earnings Account” means, in respect of each Borrower, an interest bearing USD Account
required to be opened hereunder with the Earnings 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; |
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“Earnings Account Bank” means ABN AMRO Bank N.V. acting through its branch at 93
Xxxxxxxxxx, 0000 Xxxxxxxxx, xxx Xxxxxxxxxxx or such other bank as may be designated by the
Agent as the Earnings Account Bank for the purposes of this Agreement and which is of a
rating acceptable to the Lenders, in their sole discretion; |
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“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 |
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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 both of them; |
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“EIAPP Certificate” means the Engine International Air Pollution Prevention Certificate
issued or to be issued pursuant to Annex VI of the International Convention for the
Prevention of Pollution from Ship, MARPOL 73/78 (Regulations for the Prevention of Air
Pollution from Ships) in relation to a Vessel; |
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“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; |
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“Environmental Affiliate” means any agent or employee of either Borrower, the Manager, or
any other Group Member or any other person having a contractual relationship with either
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; |
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“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; |
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“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; |
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“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 |
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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; |
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“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); |
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“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; |
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“Event of Default” means any of the events or circumstances listed in clause 10.1; |
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“Execution Date” means the date on which this Agreement has been executed by all the
parties hereto; |
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“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 a Vessel in any pool) which has a tenor exceeding twelve (12) months (including
any options to renew or extend such tenor); |
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“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; |
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“Flag State” means the Maltese or any other country acceptable to the Lenders; |
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“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 |
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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 both of them; |
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“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; |
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“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; |
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“Group Member” means any member of the Group; |
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“IAPP Certificate” means the International Air Pollution Prevention Certificate issued or
to be issued pursuant to Annex VI of the International Convention for the Prevention of
Pollution from Ship, MARPOL 73/78 (Regulations for the Prevention of Air Pollution from
Ships) in relation to a Vessel; |
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“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; |
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“Interest Payment Date” means, in relation to each Advance, the last day of an Interest
Period and, if an Interest Period is longer than 3 months, the date falling at the end of
each successive period of 3 months during such Interest Period starting from its
commencement; |
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“Interest Period” means each period for the calculation of interest in respect of the Loan
or, as the case may be, Advance ascertained in accordance with the provisions of clause 3; |
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“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; |
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“ISM SMS” means the safety management system which is required to be developed,
implemented and maintained under the ISM Code; |
8
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“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; |
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“ISSC” means an International Ship Security Certificate issued in respect of a Vessel
pursuant to the ISPS Code; |
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“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; |
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“Lenders” means the banks listed in schedule 1 and Transferee Lenders; |
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“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; |
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“LIBOR” means, for a particular period, 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 at or about 11 a.m. on the second Banking Day before the first day of such
period on such 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 or, if such quotation is not available, means the Cost of Funds; |
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“Liquidity” means the aggregate of all cash deposits legally and beneficially owned by any
Group Member which: |
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(a) |
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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 |
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(b) |
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are otherwise at the free and unrestricted disposal of the relevant Group
Member by which it is owned; |
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“Loan” means the aggregate principal amount in respect of the Loan Facility owing to the
Lenders under this Agreement at any relevant time; |
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“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 55,100,000; |
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“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 66.7% of the Loan; |
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“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); |
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“Manager” means Navios Tankers Management 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 the Agent’s consent) an
affiliate thereof or any other person appointed by an Owner, with the prior written
consent of the Agent, as the manager of the relevant Mortgaged Vessel; |
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“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 “Managers’ Undertakings” means both of them); |
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“Margin” means 3.25% per annum; |
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“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; |
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“Maturity Date” means in respect of each Advance, the earliest of (i) the date falling 6
years after the Delivery Date of the Vessel which is being financed by that Advance and
(ii) 31 July 2017; |
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“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 |
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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 twenty per cent (120%) of the Loan in respect
of mortgagee’s interest insurance and one hundred and twenty per cent (120%) of the Loan
in respect of additional perils cover; |
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“month” means a period beginning in one calendar month and ending in the next calendar
month on the day numerically corresponding to the day of the calendar month on which it
started, provided that (a) if the period started on the last Banking Day in a calendar
month or if there is no such numerically corresponding day, it shall end on the last
Banking Day in such next calendar month and (b) if such numerically corresponding day is
not a Banking Day, the period shall end on the next following Banking Day in the same
calendar month but if there is no such Banking Day it shall end on the preceding Banking
Day and “months” and “monthly” shall be construed accordingly; |
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“Mortgage” means, in respect of each Vessel, together, the first priority Statutory
Maltese mortgage thereof and Deed of Covenant collateral thereto 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 both of them; |
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“Mortgaged Vessel” means, at any relevant time, a 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; |
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“Net Profit” means for each financial year of the Corporate Guarantor, the Net
Profit as set out in the relevant Latest Accounts; |
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“Net Worth” means by reference to the Latest Accounts, the Total Assets (based on book
values) less Total Liabilities of the Group; |
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“Notes” means the 8 5/8 % first priority ship notes due in 2017
co-issued by the Corporate Guarantor and Navios Acquisition Finance (US) Inc.; |
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|
“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, Antikithira; |
| |
|
and in the plural means both 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 a 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; |
| |
|
“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); |
| |
|
“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 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; |
12
| |
|
“Repayment Dates” means, in respect of each Advance, subject to clause 6.3, each of the
dates falling at quarterly intervals after the Delivery Date in respect of the Vessel
which that Advance 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 Loan where “Relevant Percentage” means: |
| |
(i) |
|
prior to the second anniversary of the Drawdown Date in
respect of the first Advance to be made available, 125%; |
| |
|
“Retention Account” an interest bearing USD Account required to be opened hereunder with
the Retention Account Bank in the name of the Borrowers designated “Navios 2MR1s —
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 Bank” means ABN AMRO Bank N.V. acting through its branch at 93
Xxxxxxxxxx, 0000 Xxxxxxxxx, xxx Xxxxxxxxxxx or such other bank as may be designated by the
Agent as the Retention Account Bank for the purposes of this Agreement and which is of a
rating acceptable to the Lenders, in their sole discretion; |
| |
|
“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; |
13
| |
|
“Retention Amount” means, in relation to any Retention Date, such sum as shall be in
relation to each Advance, the aggregate of: |
| |
(a) |
|
one third (1/3rd) of the repayment instalment in respect of the relevant
Advance 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 Advance; 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 Drawdown Date in
respect of an Advance and each of the dates falling at monthly intervals after such date
and prior to the Maturity Date in respect of that Advance; |
| |
|
“Security Documents” means this Agreement, the Mortgages, the Corporate Guarantee, the
General Assignments, the Charter Assignments, the Earnings Account Pledge, the Retention
Account Pledge, the Manager’s Undertakings, the Shares 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 (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 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 ABN AMRO Bank N.V. acting for the purposes of this Agreement
through its branch at 93 Coolsingel, 3012 Rotterdam, the Netherlands (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 Account Bank and the Agent pursuant to clause 16.14; |
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) cash over which there is an Encumbrance as security
for the obligations of the Borrowers under this Agreement; |
| |
|
“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 both
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; |
| |
|
“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; |
| |
|
“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; |
15
| |
|
“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 Mortgaged 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 (i) either such Mortgaged Vessel be
released and restored to the relevant Owner within ninety (90) days after such
incident, or (ii) if relevant underwriters confirm in writing (in customary terms)
prior to the end of such ninety (90) day period that such capture, seizure, detention
or confiscation will be fully covered by the relevant Owner’s war risks insurance,
the shorter of twelve (12) months and such period for which cover is confirmed to
attach; |
| |
|
“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 |
16
| |
|
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 MOAs, each Charter and the Management
Agreements; |
| |
|
“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 Vessel, the value thereof as most recently
determined under clause 8.2.2; and |
| |
|
“Vessel” means each of Vessel A and Vessel B and in the plural means both 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. |
| |
|
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; |
17
| 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; |
18
| 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. |
| |
|
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 Advances,
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. |
19
| 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. |
| 2.4.1 |
|
On the terms and subject to the conditions of this Agreement, each Advance shall be advanced
to the Borrowers on the relevant Drawdown Date following receipt by the Agent from the
Borrowers of a Drawdown Notice not later than 10:00 a.m. on the second 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 |
|
Limitation and application of Advances |
| 2.5.1 |
|
The amount of the Loan shall not exceed the amount of the Loan Facility and the amount of
each Advance shall not exceed the lesser of $27,550,000, and (ii) 73% of the Valuation Amount
of the Vessel which is to be financed therewith. |
| 2.5.2 |
|
The Loan shall be made available by the advance of Advance A and Advance B each in the
amounts referred to in clause 1.2. |
| 2.5.3 |
|
Each Advance shall be paid forthwith upon drawdown to such account or accounts as the
Borrowers shall stipulate in the relevant Drawdown Notice. |
20
| |
|
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 one million Dollars
(USD 1,000,000) or any larger sum which is an integral multiple of one million Dollars (USD
1,000,000)) 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) and any
amounts payable under Clause 4.5.3 on such date and such Lender shall be under no
obligation to participate in the Loan or any further Advances. |
21
| 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 Borrower must pay interest on each Advance in respect of each Interest Period relating
thereto on each Interest Payment Date relating thereto at the rate per annum determined by
the Agent to be the aggregate of (a) the Margin and (b) Cost of Funds or, as the case may
be, LIBOR each for that Interest Period, where “Cost of Funds” shall apply (i) from the
date of this Agreement until the Lenders determine that the banking market and in
particular the London Interbank Market have stabilised and (ii) at any time after the
Lenders give the Borrowers written notice that LIBOR does not reflect the actual cost to
them of funding the Loan, and LIBOR shall apply at all other times. |
| 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), nine (9) 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 Advance shall start on the Drawdown Date in
respect thereof, and each subsequent Interest Period shall start on the last day of the
previous Interest Period; |
| 3.3.3 |
|
if any Interest Period would otherwise overrun a relevant Repayment Date, then the relevant
Advance 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 |
22
| |
|
Repayment Date and another part in the amount of the balance of that Advance 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. |
| |
|
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) the applicable one of
Cost of Funds and 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 such unpaid sum is an
amount of principal which became due and payable by reason of a declaration by the Agent
under clause 10.2.2 or a prepayment pursuant to clauses 4.3, 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 |
23
| |
|
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 the applicable one of Cost of Funds and 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 |
| |
(c) |
|
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, the
Commitment shall not be borrowed until notice to the contrary is given to the
Borrowers by the Agent. |
| 3.6.2 |
|
Within ten (10) 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 |
24
| |
|
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. |
| |
| 4 |
|
REPAYMENT AND PREPAYMENT |
| |
| 4.1 |
|
Repayment |
| |
| 4.1.1 |
|
Subject as otherwise provided in this Agreement, the Borrowers must repay each Advance by 24
quarterly instalments, the first 12 in the amount of USD750,000 each, and the next 12 in the
amount of USD575,000 each, one such instalment to be repaid on each of the Repayment Dates,
and by a balloon instalment of USD11,650,000 to be repaid on the relevant final Repayment
Date. |
| |
|
If the Commitment in respect of either Advance is not drawn in full, the amount of each
repayment instalments for that Advance shall be reduced proportionately. |
| |
|
The Agent shall have the right, following the second Drawdown Date, to require by notice
the repayments of each Advance to be made simultaneously on the repayment dates for
Advance B. |
| 4.1.2 |
|
The Borrowers shall on the Maturity Date 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. |
| |
|
Subject to clauses 4.5 and 4.6 the Borrowers may, subject to having given 15 days prior
notice thereof to the Agent, prepay any specified amount (such part being in an amount of
five hundred thousand Dollars (USD 500,000) or any larger sum which is an integral
multiple of such amount) either Advance on any relevant Interest Payment Date without
premium or penalty. |
| 4.3 |
|
Mandatory Prepayment on Total Loss |
| |
|
On the date falling one hundred and fifty (150) 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, |
25
| |
|
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 Advance relating to that
Mortgaged Vessel. |
| |
|
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 ninety (90) days, upon the expiry of the Relevant Period where
“Relevant Period” means, for the purposes of this clause 4.3.1(e), either (i) the
period of ninety (90) days after the date upon which the relevant incident occurred
or, (ii) if relevant underwriters confirm in writing (in customary terms) prior to
the end of such ninety (90) day period that such capture, seizure, detention or
confiscation will be covered by the relevant Owner’s war risks insurance if
continuing for a further |
26
| |
|
|
period exceeding ten (10) calendar months, the shorter of twelve (12) months and
such period at the end of which cover is confirmed to attach. |
| 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 Advance relating to that Mortgaged Vessel. |
| 4.5 |
|
Amounts payable on prepayment |
| |
| |
|
Any prepayment of all or part of the Loan under this Agreement shall be made together with:
4.5.1 accrued interest on the amount to be prepaid to the date of such prepayment; |
| |
| 4.5.2 |
|
any additional amount payable under clauses 3.6, 6.6 or 12.2; |
| 4.5.3 |
|
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. |
| |
| 4.6 |
|
Notice of prepayment; reduction of maximum loan amount |
| |
| 4.6.1 |
|
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 Advance 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. |
| |
| 4.6.2 |
|
Any amounts prepaid pursuant to clause 4.2 shall be applied against the relevant Advance in
pro rata reduction of the Balloon Instalment and other outstanding repayment instalments. |
| |
| 4.6.3 |
|
Any amounts prepaid pursuant to clauses 4.3, 4.4 or 4.5 shall be applied against the
relevant Advance and thereafter against the Loan in accordance with clause 4.6.2. |
| |
| 4.6.4 |
|
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. |
| |
| 4.6.5 |
|
The Borrowers may not prepay any part of the Loan except as expressly provided in this Agreement. |
27
| 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 Total 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 one point five per cent (1.5%) 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 Execution Date an arrangement fee of
USD1,377,500 for the account of the Lenders in such proportion as they shall agree between
them. |
| |
| 5.3 |
|
Agency Fee |
| |
|
The Borrowers shall pay to the Agent for its own account at any time when there is more
than one Bank, an agency fee of USD25,000 per annum payable in advance on the date of the
first Transfer Certificate and annually thereafter. |
| |
| 5.4 |
|
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: |
| 5.4.1 |
|
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 |
28
| |
|
howsoever in connection with, any of the Security Documents (including legal fees and any
travel expenses); and |
| 5.4.2 |
|
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). |
| |
|
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. |
| 5.6 |
|
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 |
29
| |
|
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. |
| |
|
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. |
| |
|
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. |
| |
|
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, |
30
| |
|
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. 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. |
31
| 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. |
| |
|
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, |
32
| |
|
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. |
| |
|
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 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 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; |
| 6.10.5 |
|
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; 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: |
33
| |
|
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; |
| |
|
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; |
34
| 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 either
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); |
| |
|
the choice of English law to govern the Underlying Documents and the Security Documents
(other than the Mortgages and the Earnings Account Pledge and the Retention 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 Pledge and the Retention 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; |
35
| |
|
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 had any significant liabilities
(contingent or otherwise) or any unrealised or anticipated losses which are not disclosed
by, or reserved against or provided for in, such financial statements; |
| |
|
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; |
36
| 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 recommendations of the
relevant Classification Society (other than those which have been or are being
complied with in accordance with their terms and which are not by their terms overdue
for compliance). |
| 7.1.17 |
|
Mortgaged Vessels’ employment |
| |
|
save for the relevant Charter, except with prior notice to the Lenders, there will not be
any agreement or arrangement whereby the Earnings (as defined in the relevant Ship
Security Documents) of any Mortgaged Vessel may be shared howsoever with any other person; |
37
| 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 Account 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
either 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; |
| |
|
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; |
38
| 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 |
|
Except for the Manager, no Security Party has incurred any Indebtedness save under this
Agreement and the Notes 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 both 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 |
39
| |
|
otherwise stated in such confirmation, no Default has occurred and is continuing and no
such Proceedings are on foot or threatened; |
| |
|
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 (commencing with the Financial Year
ending 31 December 2011), together with updated details (in a form acceptable to |
40
| |
|
|
the Agent) of all off-balance sheet and time-charter hire commitments of the
Relevant Ships; |
| |
(b) |
|
as soon as possible, but in no event later than 90 days after the end of
each 6 month period in each of its Financial Years, the Corporate Guarantor’s
unaudited consolidated balance sheet and profit and loss accounts for that 6 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 each Bank on the
Agent’s written demand the amount of the premium payable by such Bank 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 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 either 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; |
41
| 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 either
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 |
| |
| |
|
comply with, and will ensure that the Manager and each Mortgaged Vessel complies with, all
relevant Environmental Laws, laws, statutes and regulations and pay all taxes for which it
is liable as they fall due and has or have at all times all trading certificates necessary
to carry out the trade in which the Vessels are engaged at any relevant time; |
42
|
|
(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 |
|
Charter termination |
| |
| |
|
if any Charter is terminated other than by mere effluxion of time prior to the third
anniversary of the first Drawdown Date, forthwith thereon employ the relevant Vessel under
a time charterparty, contract of affreightment or other contract of employment on terms
and in a form reasonably acceptable to the Lenders. |
| |
| 8.1.18 |
|
Financial Covenants of the Corporate Guarantor’s Group |
| |
| |
|
procure that |
| |
(a) |
|
at no time shall the Liquidity of the Group be less than USD40,000,000; |
| |
| |
(b) |
|
until 1 January 2013, the Net Worth of the Group will at all times exceed
USD75,000,000 and thereafter the Net Worth of the Group will at all times exceed
USD135,000,000; |
| |
| |
(c) |
|
as of 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%. |
| 8.1.19 |
|
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 time 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; |
43
| 8.1.20 |
|
Subordination |
| |
| |
|
ensure that all Indebtedness of either Borrower to its shareholders, to the Manager or to
any other Group Member is fully subordinated (except for the Notes), 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); and |
| |
| 8.1.21 |
|
Classification Society undertaking |
| |
| |
|
If so requested by the Agent, on or before the relevant Delivery Date, or immediately on
any change of Classification Society for either Vessel, irrevocably instruct (in such form
as the Agent and the Majority Lenders may require in their sole discretion) the
Classification Society of each Vessel to do all or any of the following during the
Facility Period (and use reasonable endeavours to procure that the Classification Society
undertakes with the Agent at such time): |
| |
(a) |
|
to send to the Agent, following receipt of a written request from the
Agent, certified true copies of all original class records held by the Classification
Society in relation to that Vessel; |
| |
| |
(b) |
|
to allow the Agent (or its agents), at any time and from time to time, to
inspect the original class and related records of the relevant Owner and that Vessel
at the offices of the Classification Society and to take copies of them; |
| |
| |
(c) |
|
to notify the Agent immediately if the Classification Society: |
| |
(i) |
|
receives notification from the relevant Owner or any
person that that Vessel’s Classification Society is to be changed; |
| |
| |
(ii) |
|
becomes aware of any facts or matters which may result in
or have resulted in a change, suspension, discontinuance, withdrawal or
expiry of that Vessel’s class under the rules or terms and conditions of
that Owner’s or that Vessel’s membership of the classification society; or |
| |
| |
(iii) |
|
has imposed any requirements or recommendations in
respect of the relevant Vessel (other than those which have been or are
being complied with in accordance with their terms and which are not by
their terms overdue for compliance); |
44
| |
(d) |
|
following receipt of a written request from the Agent: |
| |
(i) |
|
to confirm that the relevant Owner is not in default of
any of its contractual obligations or liabilities to the classification
society and, without limiting the foregoing, that it has paid in full all
fees or other charges due and payable to the classification society; or |
| |
| |
(ii) |
|
if that Owner is in default of any of its contractual
obligations or liabilities to the classification society, to specify to the
Agent in reasonable detail the facts and circumstances of such default, the
consequences thereof, and any remedy period agreed or allowed by the
classification society. |
| 8.1.22 |
|
Dividends |
| |
| |
|
Provided that no Event of Default has occurred or shall be caused thereby, the Borrowers
and Corporate Guarantor may declare or pay dividends for the period commencing with the
third quarter of 2011 and thereafter, or distribute any of their present or future assets,
undertakings, rights or revenues in an amount not exceeding in aggregate 50% of the Net
Profits for any relevant financial quarter to any of their partners, members or
shareholders. |
| |
| 8.1.23 |
|
Breach/amendment of MOA/ Charter |
| |
| |
|
Agree any amendment or supplement to an MOA or Charter, or waive or fail to enforce any
breach by the relevant Seller or charterer respectively thereunder. |
| |
| 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 Loan as will result in the
Security Value after such prepayment (taking into account any other repayment of the
Loan made |
45
| |
|
|
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 Lenders having a value for security
purposes (as determined by the Lenders in their 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 4.5 and 4.6 shall apply to prepayments under clause 8.2.1(a)
provided that the Agent shall apply such prepayments (i) pro rata against the Advances,
(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 either (i) the valuation prepared by an Approved
Broker appointed by the Borrowers or (ii) if requested by the Agent, the arithmetic mean
of valuations prepared by the Approved Broker so appointed by the Borrowers and an
Approved Broker appointed by the Agent, in each case such valuations 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 provided that if such two valuations vary by 10%
or more then the Borrowers may appoint a third Approved Broker to provide a valuation and
the Valuation Amount shall be the arithmetic mean of such three valuations. Valuations
shall be obtained: |
| |
(a) |
|
on the date falling six months after the first Drawdown Date and
semi-annually thereafter; and |
| |
| |
(b) |
|
(in addition to (a) above) at any other time as the Agent shall require (in
its absolute discretion). |
46
| |
|
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 obtaining and determining (i) any Valuation Amount pursuant
to Clause 8.2.2(a), (ii) any Valuation Amount pursuant to clause 8.2.2(b) after the
occurrence of a Default, (iii) any Valuation Amount which obliges the Borrowers to make a
prepayment of the Loan or provide additional security in accordance with Clause 8.2.1, and
(iv) 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 and all
costs in connection with obtaining and determining any Valuation Amount under clause
8.2.2(b) prior to the occurrence of a Default shall be at the cost of the Lenders. |
| |
| 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 in its absolute discretion. |
| |
| 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. |
47
| |
| 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 and Agent (acting on the instructions of the Lenders which consent shall not, in
respect of clauses 8.3.4 and 8.3.13, be unreasonably withheld. |
| |
| 8.3.1 |
|
Negative pledge |
| |
| |
|
will not, 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,
unless the same is reasonably required in the ordinary course of business; |
| |
| 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; |
48
| |
|
incur any obligations (to any Group Member or otherwise) except for obligations arising
under the Underlying Documents or the Security Documents or contracts entered into (or in
the case of any obligation to any Group Member, reasonably 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, other than those given under the Notes 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 (i) 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 and (ii) such other guarantees to which the Agent shall have consented in writing
on behalf of the Banks; |
| |
| 8.3.10 |
|
Loans |
| |
| |
|
make any loans or grant any credit (save for normal trade credit in the ordinary course of
business) to any person or agree to do so; |
| |
| 8.3.11 |
|
Sureties |
| |
| |
|
permit any Indebtedness of either Borrower to any person (other than the 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); |
49
| |
|
form or acquire any Subsidiaries; |
| |
| 8.3.13 |
|
Change of name, flag or class |
| |
| |
|
Change the name, flag, Classification or Classification Society of either Vessel; or |
| |
| 8.3.14 |
|
Charters and charters |
| |
(a) |
|
agree to shorten the tenor of either Charter; or |
| |
| |
(b) |
|
agree to reduce the charter hire payable under any Charter; |
| |
| |
(c) |
|
without the prior written consent of the Agent (acting on the instructions
of the Lenders) and then, if such consent is given, only subject to such conditions
as the Agent (acting on the instructions of the Lenders) may impose, let or agree to
let a Vessel: |
| |
(i) |
|
on demise charter for any period; or |
| |
| |
(ii) |
|
by any time or consecutive voyage charter for a term
which exceeds or which by virtue of any optional extensions therein
contained may exceed twelve (12) months’ duration; or |
| |
| |
(iii) |
|
on terms whereby more than two (2) months’ hire (or the
equivalent) is payable in advance; or |
| |
| |
(iv) |
|
below a fair and reasonable arms-length rate obtainable
at the time when the relevant Vessel is fixed. |
| 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 (after consultation with the Lenders) and its lawyers; |
50
| 9.1.2 |
|
that, on or before the Drawdown Date of each Advance but prior to making such Advance, 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 |
|
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 |
| |
| 9.1.4 |
|
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. |
| |
| 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) |
51
| |
|
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: There shall occur a default (howsoever therein described) under any
Indebtedness of either Borrower in an amount exceeding one million Dollars (USD1,000,000) or
any Indebtedness (including, but not limited to, the Notes) of any Group Member in an amount
exceeding five million Dollars (USD5,000,000) is not paid when due (subject to applicable
grace periods) or any such Indebtedness of either Borrower or any Group Member 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 Group Member
of a voluntary right of prepayment), or any creditor of a Borrower or any |
52
| |
|
Group Member becomes entitled to declare any such Indebtedness due and payable or any
facility or commitment available to either Borrower or any Group Member 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 (other than the Corporate Guarantor and the Manager) 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 and the Manager) 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 |
53
| 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 and the Manager) 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 |
54
| 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 fifteen (15) Banking Days thereafter (this
clause does not include capture of a Vessel by pirates for up to 12 months (but does apply if
such capture exceeds 12 months) if relevant underwriters confirm in writing (in customary
terms) within ninety (90) day of capture, that such capture will be covered by the relevant
Owner’s war risks insurance); 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 |
55
| |
|
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 direct or indirect ownership of either Borrower
without the prior written consent of the Agent or the number of shares of and in the Corporate
Guarantor owned by Navios Maritime Holdings Inc., Xxx. Xxxxxxxx Xxxxxxx and their respective
affiliates in aggregate falls below 30% of the issued shares of the Corporate Guarantor or
there is a change of control of the Corporate Guarantor; |
| |
| 10.1.28 |
|
Material adverse change: there occurs, in the reasonable opinion of the Agent (following
consultation with the Lenders), a material adverse change in: |
| |
(a) |
|
the financial condition or strength of any Security Party or the Group by
reference to the financial position or strength of such Security Party and the Group
as described by any Security Party to the Agent in the negotiation of this Agreement;
or |
| |
| |
(b) |
|
in the conditions prevailing in the international money and capital
markets; or |
| |
| |
(c) |
|
in the financial, political or economic situation globally; or |
| |
| |
(d) |
|
the financial prospects of the Borrowers, the Corporate Guarantor or the
Group, in the reasonable opinion of the Lenders. |
| 10.1.29 |
|
Charter: a Charter shall terminate other than by effluxion of time or it shall be amended
in a material (in the opinion of the Agent) respect without the prior consent of the Agent |
56
| 10.1.30 |
|
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 |
| |
| 10.2 |
|
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 |
57
| |
|
(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) |
58
|
|
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): |
59
| |
(a) |
|
such Lender shall notify the Borrowers in writing of such event promptly
upon its becoming aware of the same; and |
| |
| |
(b) |
|
the Borrowers shall on demand made at any time whether or not such 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 Agent or any of the other Banks
under, or in relation to, the Security Documents which remain unpaid; |
60
| 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); |
| |
| 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, 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 either Borrower is then entitled standing upon any account
of either 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, |
61
|
|
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). |
62
| |
|
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. |
63
| |
|
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 |
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| |
|
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 its Earnings Account, Provided however that if any of the moneys paid to an
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 Account Bank shall then convert such moneys into USD at the
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 in payment to the Banks of any outstanding amounts due to them under any
Finance Document, (ii) secondly in payment to the Retention Account in accordance with
Clause 14.3 and (iii) subject to there being at any time sufficient funds to pay amounts
due under (i) and (ii) above as they fall due and to no Event of Default having occurred,
thirdly for the unrestricted use 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
Account Bank (and the Borrowers hereby irrevocably authorise the Account Bank so to apply the
same) upon each Repayment Date and/or on each day that interest is payable on the Loan |
65
|
|
or an Advance 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 the 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 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 Bank to apply all moneys then standing to the credit of the Earnings Accounts
and/or the Retention Account (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 and the Retention Account 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 and the Retention Account Pledge respectively. |
| |
| 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.
|
66
| |
|
any Lender (the “Transferor Lender”) may at any time, after consultation with the
Borrowers and / or the Corporate Guarantor, cause all or any part of its rights, benefits
and/or obligations under this Agreement and the other Security Documents to be transferred
to (i) another Lender, (ii) another branch, subsidiary or affiliate of a Lender, (iii)
another first class international bank or financial institution, (iv) a trust corporation,
fund or other person which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial assets and which
is advised by or the assets of which are managed or serviced by a Lender (in each case a
“Transferee Lender”) without the consent of the Borrowers or the Corporate Guarantor, in
each case by delivering to the Agent a Transfer Certificate duly completed and duly
executed by the Transferor Lender and the Transferee Lender. 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 the Agent and/or the 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 |
67
| |
|
|
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 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 Bank, 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. |
68
| 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 |
69
| |
|
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, consultation with or notice
to, the Borrowers. |
| |
| 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
Bank and the other Lenders. |
| |
| 15.9 |
|
Securitisation |
| |
| |
|
A Lender may include all or any part of the Loan in a securitisation or similar
transaction without the consent of, or consultation with, but after giving 45-day notice
to, the Borrower or any Security Party or any charterer. The Borrowers will assist the
Lenders as necessary to achieve a successful securitisation (or similar transaction)
Provided that the Borrowers shall not be required to bear any third party costs related to
any such securitisation and need only provide such information which any third parties may
reasonably request. |
| |
| 15.10 |
|
Disclosure of information |
| |
| |
|
The Borrowers hereby do, and shall procure that the other Security Parties do, irrevocably
authorise each Bank to give, divulge and reveal from time to time information and details
relating to their accounts, the Vessels, the Security Documents, the Loan, the Commitments
and any agreement entered into by the Borrowers and/or Security Party or information
provided by the Borrowers or Security Party in connection with the Security Documents to: |
70
| |
(i) |
|
any public or internationally recognised authorities that are entitled to
and have requested to obtain such information, |
| |
| |
(ii) |
|
the Banks’ respective head offices, branches and affiliates and professional advisors, |
| |
| |
(iii) |
|
any other parties to the Security Documents, |
| |
| |
(iv) |
|
a rating agency or their professional advisors, |
| |
| |
(v) |
|
any person with whom such Bank proposes to enter (or considers entering)
into contractual relations in relation to the Loan and/or its Commitment or
Contribution, and |
| |
| |
(vi) |
|
any other person regarding the funding, re-financing, transfer, assignment,
sale, sub-participation or operational arrangements or other transaction in relation
to the Loan, its Contribution or its Commitment, including without limitation, for
purposes in connection with a securitisation or similar transaction or any
enforcement, preservation, assignment, transfer, sale or sub-participation of any of
such Bank’s rights and obligations. |
| 16 |
|
AGENT AND SECURITY TRUSTEE |
| |
| 16.1 |
|
Appointment of the Agent |
| |
| |
|
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 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. |
71
| |
|
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 duties |
| |
| 16.3.1 |
|
The Agent shall promptly notify each Lender of the contents of each notice, certificate or
other document received by it from the Borrowers under or pursuant to clauses 8.1.1, 8.1.6,
8.1.9, 8.1.10, 8.1.13 and 8.1.17; 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; |
72
| 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 |
| |
| |
|
None of the Security Trustee, the Agent nor any of their respective employees and agents
shall: |
| |
| 16.5.1 |
|
be obliged to make any enquiry as to the use of any of the proceeds of 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 |
73
| 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 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 Security
Trustee or the Agent or the person for the time being acting as 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 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 Security Trustee, Agent |
| |
| |
|
Each Lender acknowledges that it has not relied on any statement, opinion, forecast or
other representation made by 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 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 Security Trustee and the
Agent shall have any duty or responsibility, either initially or on a continuing basis, to
provide any Lender 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 Security Trustee, Agent for Borrowers’ performance |
| |
| |
|
Neither of the Security Trustee or the Agent shall have any responsibility or liability to
any Lender: |
74
| 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 the failure to register any of the Security Documents with any official or regulatory
body or office or elsewhere; or |
| |
| 16.7.7 |
|
for taking or omitting to take any other action under or in relation to any of the Security
Documents or any aspect of any of the Security Documents; or |
| |
| 16.7.8 |
|
on account of the failure of the Security Trustee to perform or discharge any of its duties
or obligations under the Security Documents; or |
| |
| 16.7.9 |
|
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 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 Security Trustee’s or Agent’s employment). |
| |
| 16.9 |
|
Other dealings |
| |
| |
|
Each of the Security Trustee and the Agent may, without any liability to account to the
Lenders, accept deposits from, lend money to, and generally engage in any kind of banking
or |
75
| |
|
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 Security Trustee or the Agent. |
| |
| 16.10 |
|
Rights of 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 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 authorised 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 |
76
| |
|
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 5.4 including
(in each case), |
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| |
|
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 Security Trustee /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 Security
Trustee or the Agent (as the case may be) 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 Security Trustee or, as
the case may be, the Agent nominated by the Security Trustee or, as the case may be,
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 or, as the case may be, the retiring Security Trustee. |
| |
|
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 |
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| |
|
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 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 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 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. |
79
| |
|
Without prejudice to clause 16.13, the Security Trustee 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 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 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 |
80
| |
|
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 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 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 and the Agent by the Security Trustee and shall be binding on the
other Banks. |
81
| 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 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 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. |
82
| 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 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. |
83
| 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 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 |
84
| |
|
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 Bank
and/or the Lenders 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; |
85
| 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
|
|
c/o Navios Tankers Management Inc. |
|
|
|
|
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 Security Trustee and/or Account
Bank and/or Security Trustee 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:
|
|
ABN AMRO Bank N.V. |
|
|
|
|
|
|
|
Address:
|
|
ABN AMRO Bank X.X. |
|
|
|
|
00 Xxxxxxxxxx, |
|
|
|
|
0000 Xxxxxxxxx, |
|
|
|
|
Xxx Xxxxxxxxxxx |
|
|
|
|
|
|
|
Fax:
|
|
0000 00 000 0000 |
|
|
Attn:
|
|
Xxxxx Van Wijk/Xxxxx Sanliunal |
| 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 |
86
| |
|
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
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 |
87
| |
|
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 either 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: |
88
| 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 either
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, either 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 either
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 both 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 either 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; |
89
| 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 |
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| |
|
This Agreement is governed by and shall be construed in accordance with English law. |
| |
| 20 |
|
JURISDICTION |
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| 20.1 |
|
Exclusive Jurisdiction |
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| |
|
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. |
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| 20.2 |
|
Submission and service of process |
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| |
|
Each Borrower accordingly irrevocably and unconditionally submits to the jurisdiction of
the English courts. Without prejudice to any other mode of service each Borrower: |
90
| 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; |
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| 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 |
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| |
|
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 it in the courts of any other jurisdiction. |
| |
| 20.4 |
|
Right of Agent, but not Borrowers, to bring proceedings in any other jurisdiction |
91
| 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 both 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 any Bank, 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; |
92
| |
|
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. |
93
Execution Pages
IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on
the date first above written.
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|
|
|
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SIGNED
by Xxxx Xxxxxxx
|
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|
) |
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as a deed for and on behalf of
|
|
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) |
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ANTIKITHIRA SHIPPING CORPORATION
|
|
|
) |
/s/ Xxxx Xxxxxxx |
(as Borrower under and pursuant to
|
|
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) |
|
a power of attorney dated 4 July 2011
|
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) |
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in
the presence of Xxxxxxxx Xxxxx*
|
|
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) |
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SIGNED
by Xxxx Xxxxxxx
|
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) |
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as a deed for and on behalf of
|
|
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) |
|
KITHIRA SHIPPING CORPORATION
|
|
|
) |
/s/ Xxxx Xxxxxxx |
(as Borrower under and pursuant to
|
|
|
) |
|
a power of attorney dated 4 July 2011)
|
|
|
) |
|
in
the presence of Xxxxxxxx Xxxxx*
|
|
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) |
|
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|
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SIGNED
by Ronan Le Du
|
|
|
) |
|
for and on behalf of
|
|
|
) |
|
ABN AMRO BANK N.V.
|
|
|
) |
/s/ Ronan Le Du |
(as
Lender) in the presence of Xxxxxxxx Xxxxx*
|
|
|
) |
|
|
|
|
|
|
SIGNED
by Ronan Le Du
|
|
|
) |
|
for and on behalf of
|
|
|
) |
|
ABN AMRO BANK N.V.
|
|
|
) |
/s/ Ronan Le Du |
(as Agent and Security Trustee)
|
|
|
) |
|
in
the presence of Xxxxxxxx Xxxxx*
|
|
|
) |
|
* /s/
Xxxxxxxx Xxxxx
Xxxx & Co.
Akti Xxxxxxx 00-00
Xxxxxxx
000 00
Xxxxxx
94
