Date 19 March 2008 CAPITAL PRODUCT PARTNERS L.P. as Borrower - and - THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders - and - HSH NORDBANK AG as Swap Bank - and - HSH NORDBANK AG as Bookrunner - and - HSH NORDBANK AG as Mandated...
Exhibit
4.10
Date 19
March 2008
as
Borrower
- and
-
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
- and
-
HSH
NORDBANK AG
as Swap
Bank
- and
-
HSH
NORDBANK AG
as
Bookrunner
- and
-
HSH
NORDBANK AG
as
Mandated Lead Arranger,
Facility
Agent and Security Trustee
- and
-
DnB
NOR BANK ASA
as
Co-Arranger
__________________________________
__________________________________
relating
to revolving credit and term loan facilities not
exceeding
US$350,000,000 in aggregate to initially
part-finance
the acquisition cost of four tanker vessels and
further
part-finance the acquisition cost of certain additional vessels
XXXXXX,
XXXXXX & XXXXXXXX
Piraeus
| Clause | Page | |
THIS LOAN AGREEMENT is made on
19 March 2008
BETWEEN:
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(1)
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CAPITAL PRODUCT PARTNERS
L.P. being a limited partnership formed in the Republic of the
Xxxxxxxx Islands whose registered office is at Trust Company House, Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Xxxxxxxx
Islands as Borrower.
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(2)
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THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1, as Lenders.
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(3)
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HSH NORDBANK AG as Swap
Bank.
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(4)
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HSH NORDBANK AG as
Bookrunner.
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(5)
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HSH NORDBANK AG as Mandated Lead Arranger,
Facility Agent and Security
Trustee.
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(6)
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DnB NOR BANK ASA, London
as
Co-Arranger.
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WHEREAS
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(A)
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The
Lenders have agreed to make available to the Borrower a revolving credit
facility (initially divided into 3 tranches) of up to US$350,000,000 for
the purpose of:
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(i)
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in
the case of Tranche A (being in an amount of up to US$57,500,000), to
refinance part of the cost of acquiring the issued share capital of the
Existing Owners of the 2001-built Suezmax tanker “AMORE MIO II” and the
2005-built chemical tanker
“ARISTOFANIS”;
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(ii)
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in
the case of Tranche B (being in an amount of up to US$52,500,000), to
refinance part of the cost of acquiring the issued share capital of the
Existing Owners of the 2006-built medium range product tankers “ARISTIDIS”
and “ALKIVIADIS”; and
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(iii)
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in
the case of Tranche C (being in an amount of up to US$240,000,000), to
part-finance or refinance the acquisition cost of certain Additional Ships
or to part-finance or refinance the cost of acquiring the issued share
capital of an Additional Ship
Owner.
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Subject
to the terms and conditions of this Agreement all amounts outstanding under the
revolving credit facility on the Termination Date shall on that date be
converted into a term loan facility which shall be repaid over a period of 5
years (or, through the operation of Clause 4.9, 2 years) in accordance with the
terms of this Agreement.
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(B)
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To
the extent initially borrowed for the purposes referred to in Recital (A)
and prepaid, the Borrower shall be entitled to reborrow the prepaid
amounts for the purpose referred to in paragraph (iii) of Recital (A) or
in order to provide the Borrower with additional liquidity for its general
working capital and corporate
purposes
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(C)
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The
Swap Bank has agreed to enter into interest rate swap transactions with
the Borrower from time to time to hedge the Borrower’s exposure under this
Agreement to interest rate
fluctuations.
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(D)
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The
Lenders and the Swap Bank have agreed to share in the security to be
granted to the Security Trustee pursuant to this Agreement with the
obligations of the Borrower to the Swap Bank being subordinated to those
of the Borrower to the Lenders.
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IT IS AGREED as
follows:
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1.1
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Definitions. Subject
to Clause 1.5, in this Agreement:
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“Accounting
Information” means the annual audited consolidated accounts to
be provided by the Borrower to the Facility Agent in accordance with Clause
11.6(a)(i) of this Agreement or the quarterly unaudited management accounts of
the Borrower to be provided by the Borrower to the Facility Agent in accordance
with Clause 11.6(b)(i) of this Agreement (as the context may
require);
“Additional
Advance” means each Advance which is to be used in refinancing
or financing on delivery part of the purchase price of an Additional Ship or in
financing or refinancing part of the cost of acquiring the issued share capital
of an Additional Ship Owner and which is to be made available in accordance with
and pursuant to Clauses 2.1 and 4.2(c);
“Additional
Ship” means any ship which is, or is to be, purchased by an
Additional Ship Owner, each of which (unless all of the Lenders acting in their
absolute discretion agree otherwise) must satisfy all the Additional Ship
Requirements;
“Additional Ship
MOA” means, in relation to an Additional Ship, a memorandum of
agreement or a shipbuilding contract to be made between the Additional Ship
Seller of that Additional Ship and the Additional Ship Owner which is the buyer
thereof on terms and conditions acceptable to the Lenders and, in the plural,
mean all of them;
“Additional Ship
Owner” means a company which is or will be a direct or
indirect wholly-owned subsidiary of the Borrower incorporated in a jurisdiction
acceptable to the Lenders (in their absolute discretion) which shall be the
owner of an Additional Ship and, in the plural, means all of them;
“Additional Ship
Requirements” means, in relation to any Ship which is, or is
to be, purchased by an Additional Ship Owner, a ship which satisfies the
following requirements:
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(a)
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it
is a tanker built in or after 2002;
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(b)
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it
maintains the highest class with an Approved Classification Society free
of any overdue recommendations and
conditions;
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(c)
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it
is to be registered on an Approved
Flag;
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“Additional Ship
Seller” means, in relation to an Additional Ship, the seller
of such Additional Ship and, in the plural, means all of them;
“Xxxxxx” means
Xxxxxx Shipholding Inc., a corporation incorporated and existing under the laws
of the Republic of Xxxxxxxx Islands and having its registered office at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx
Islands;
“Advance” means the
principal amount of each borrowing by the Borrower under this
Agreement;
“Affected
Lender” has the meaning given in Clause 5.5;
“Agency and Trust
Agreement” means the agency and trust agreement executed or to
be executed between the Borrower, the Lenders, the Swap Bank and the Security
Trustee in such form as the Lenders may approve or require;
“ALKIVIADIS” means
the 2006-built medium range product tanker of approximately 37,000 deadweight
tons registered in the ownership of Xxxxxx under the Xxxxxxxx Islands flag with
the name “ALKIVIADIS”;
“AMORE MIO II” means
the 2001-built Suezmax tanker of approximately 160,000 deadweight tons
registered in the ownership of Baymont under the Liberian flag with the name
“AMORE MIO II”;
“Approved
Broker” means each of H. Clarksons & Company Limited, XX
Xxxxxx, Xxxxxxxxx’x Limited, X.X. Xxxxxx Shipbrokers and Xxxxx Xxxxxxxx Xxxxxx
and in the plural means all of them;
“Approved Classification
Society” means any of the following:
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(a)
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American
Bureau of Shipping;
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(b)
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Bureau
Veritas;
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(c)
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Det
Norske Veritas;
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(d)
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Germanischer
Xxxxx;
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(e)
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Korean
Register of Shipping;
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(f)
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Lloyd’s
Register of Shipping;
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(g)
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Nippon
Kaiji Kyokai;
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(h)
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Registro
Italiano Navale; and
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in the
case of “ARISTOFANIS” only, China Classification Society;
“Approved
Flag” means the Liberian or Xxxxxxxx Islands or Bahamas or
Greek or Malta flag or such flag as the Facility Agent may, with the
authorisation of all the Lenders, approve as the flag on which a Ship shall be
registered, such approval not to be unreasonably withheld;
“Approved Flag
State” means any country in which the Facility Agent may with
the authorisation of all the Lenders, approve that a Ship be registered, such
approval not to be unreasonably withheld;
“Approved
Manager” means, in relation to a Ship, Capital Ship Management
Corp., a company incorporated in Panama having its registered office at Hong
Kong Bank Building, 6th floor,
Xxxxxx Xxxxx Avenue, Panama, Republic of Panama, or any other company which the
Lenders may approve (such approval not to be unreasonably withheld) from time to
time as the commercial, technical and/or operational manager of that
Ship;
“Approved Manager’s
Undertaking” means, in relation to each Ship, a letter of
undertaking executed or to be executed by the Approved Manager in favour of the
Security Trustee in the terms required by the Security Trustee agreeing certain
matters in relation to the Approved Manager serving as the manager of the Ship
and subordinating the rights of the Approved Manager against such Ship and the
Owner thereof to the rights of the Creditor Parties under the Finance Documents,
in such form as the Security Trustee, with the authorisation of the Majority
Lenders, may reasonably approve or require and in the plural means all of
them;
“ARISTIDIS” means
the 2006-built medium range product tanker of approximately 37,000 deadweight
tons registered in the ownership of Atlantas under the Xxxxxxxx Islands flag
with the name “ARISTIDIS”;
“ARISTOFANIS” means
the 2005-built chemical tanker of approximately 12,000 deadweight tons
registered in the ownership of Forbes under the Liberian flag with the name
“ARISTOFANIS”;
“Atlantas” means
Atlantas Shipping Company, a corporation incorporated and
existing under the law of the Republic of the Xxxxxxxx Islands and
having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Xxxxxxxx Islands;
“Availability
Period” means the period commencing on the date of this
Agreement and ending on:
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(a)
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30
March 2013 (as such date may be extended in accordance with Clause 4.9),
or such later date as the Facility Agent may, with the authorisation of
all the Lenders, agree with the Borrower;
or
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(b)
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if
earlier, the date on which the Total Commitments are cancelled or
terminated;
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“Balloon
Instalment” has the meaning given to that term in Clause
8.2(b);
“Bareboat Charter Security
Agreement” means, in relation to any Ship which is subject to
a bareboat charter (other than any bareboat charter to which BP is a party)
(which charter may be entered into by the relevant Owner in accordance with
Clause 14.17), an agreement or agreements whereby the Security Trustee receives
an assignment of the rights of the relevant Owner under the bareboat charter and
certain undertakings from that Owner and the relevant charterer and, if so
agreed by the Security Trustee (acting with the authorisation of the Lenders),
agrees to give certain undertakings to that charterer, in each case, in such
form as the Majority Lenders may reasonably approve or require and, in the
plural, means all of them;
“Baymont” means Baymont
Enterprises Incorporated, a corporation incorporated and exising under the laws
of the Liberia and having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx
“Borrower” means
Capital Product Partners L.P., a limited partnership formed under the laws of
the Republic of the Xxxxxxxx Islands and having its registered office at Trust
Company House, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
the Xxxxxxxx Islands;
“BP” means BP
Shipping Limited, a company incorporated in England whose registered office is
at Chartsey Road, Sunbury Xxxx Xxxxxx, Xxxxxxxxx XX00 0XX, Xxxxxx
Xxxxxxx;
“Business Day” means
a day on which banks are open in London, Hamburg, Athens and Piraeus and in
respect of a day on which a payment is required to be made under a Finance
Document, also in New York City;
“Charterparty” means
any bareboat charterparty or any time charterparty in respect of a Ship of a
duration (or capable of being or exceeding a duration) of 11 months or more,
made on terms and with a charterer acceptable in all respects to the Lenders,
such acceptance not to be unreasonably withheld;
“Charterparty
Assignment” means, in relation to:
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(a)
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a
Ship (at all times during the term of the Existing Charter relative
thereto), an assignment of the rights of the Owner of that Ship under the
Existing Charter relative to that Ship executed or to be executed by the
relevant Owner in favour of the Security Trustee;
and
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(b)
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each
Ship (in the case of AMORE MIO II and ARISTOFANIS, after the expiry of the
Existing Charter relative thereto), an assignment of the rights of the
relevant Owner under any Charterparty in respect of such Ship with a
duration of at least 11 consecutive months executed or to be executed by
the relevant Owner in favour of the Security
Trustee,
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in each
case, in such form as the Lenders may approve or require and, in the plural,
means all of them;
“Closing Date” means
a Business Day falling no later than 30 March 2008;
“Co-Arranger” means
DnB NOR Bank ASA, London, acting through its office at 00 Xx Xxxxxxx’x Xxxx,
Xxxxxx XX0X 0XX, Xxxxxxx;
“Commitment” means,
in relation to a Lender, the amount set opposite its name in Schedule 1, or, as
the case may require, the amount specified in the relevant Transfer Certificate,
as that amount may be reduced, cancelled or terminated in accordance with this
Agreement (and “Total
Commitments” means the aggregate of the Commitments of all the
Lenders);
“Compliance
Certificate” means a certificate in the form set out in
Schedule 6 (or in any other form which the Facility Agent, acting with the
authorisation of all the Lenders, approves or requires);
“Confirmation” and
“Early Termination
Date”, in relation to any continuing Designated Transaction, have the
meanings given in the Master Agreement;
“Contractual
Currency” has the meaning given in Clause 21.5;
“Contribution” means,
in relation to a Lender, the part of the Loan which is owing to that
Lender;
“Creditor
Party” means the Facility Agent, the Security Trustee, the
Mandated Lead Arranger, the Swap Bank or any Lender, whether as at the date of
this Agreement or at any later time;
“Deed of Covenant” means, in
relation to a Ship registered or to be registered under Bahamas or Malta flag, a
deed of covenant collateral to the Mortgage of that Ship creating charges over
the Ship, executed or to be executed by the Owner of that Ship in favour of the
Security Trustee, in such form as the Lenders may approve or require, and in the
plural means all of them;
“Designated Transaction” means
a Transaction which fulfils the following requirements:
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(a)
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it
is entered into by the Borrower pursuant to the Master Agreement with the
Swap Bank which, at the time the Transaction is entered into, is also a
Lender;
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(b)
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its
purpose is the hedging of the Borrower’s exposure under this Agreement to
fluctuations in LIBOR arising from the funding of the Loan (or any part
thereof) for a period expiring no later than the final Repayment Date;
and
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(c)
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it
is designated by the Borrower, by delivery by the Borrower to the Facility
Agent of a notice of designation in the form set out in Schedule 5, as a
Designated Transaction for the purposes of the Finance
Documents;
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“Distribution Declaration Date”
means, in respect of each quarterly period during each Financial Year, a date
(being a Business Day) falling no later than 60 days after the end of the
relevant preceding financial quarter;
“Dollars” and “$” means the lawful
currency for the time being of the United States of America;
“Drawdown
Date” means, in relation to an Advance, the date requested by
the Borrower for the Advance to be made, or (as the context requires) the date
on which the Advance is actually made;
“Drawdown
Notice” means a notice in the form set out in Schedule 2 (or
in any other form which the Facility Agent, acting with the authorisation of all
the Lenders, approves or reasonably requires);
“Earnings” means, in
relation to a Ship, all moneys whatsoever which are now, or later become,
payable (actually or contingently) to the Owner owning the Ship or the Security
Trustee and which arise out of the use or operation of the Ship, including (but
not limited to):
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(a)
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all
freight, hire and passage moneys, compensation payable to the Owner owning
the Ship or the Security Trustee in the event of requisition of the Ship
for hire, remuneration for salvage and towage services, demurrage and
detention moneys and damages for breach (or payments for variation or
termination) of any charterparty or other contract for the employment of
the Ship;
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(b)
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all
moneys which are at any time payable under Insurances in respect of loss
of earnings; and
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(c)
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if
and whenever the Ship is employed on terms whereby any moneys falling
within paragraphs (a) or (b) above are pooled or shared with any other
person, that proportion of the net receipts of the relevant pooling or
sharing arrangement which is attributable to the
Ship;
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“Earnings
Account” means, with respect to an Owner, an account in the
name of that Owner with the Facility Agent in Hamburg which is designated by the
Facility Agent in writing as the Earnings Account with respect to that Owner for
the purposes of this Agreement and in the plural means all of them;
“Earnings Account
Pledge” means, in relation to an Earnings Account, a deed of
pledge of that Earnings Account, in such form as the Lender may approve or
require, and in the plural means all of them;
“EBITDA” means, in
respect of the relevant period, the aggregate amount of consolidated or combined
pre-tax profits of the Group before extraordinary or exceptional items,
depreciation, interest, repayment of principal in respect of any loan, rentals
under finance leases and similar charges payable;
“Environmental
Claim” means:
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(a)
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any
claim by any governmental, judicial or regulatory authority which arises
out of an Environmental Incident or an alleged Environmental Incident or
which relates to any Environmental Law;
or
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(b)
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any
claim by any other person which relates to an Environmental Incident or to
an alleged Environmental Incident,
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and
“claim” means a claim
for damages, compensation, fines, penalties or any other payment of any kind
whether or not similar to the foregoing; an order or direction to take, or not
to take, certain action or to desist from or suspend certain action; and any
form of enforcement or regulatory action, including the arrest or attachment of
any asset;
“Environmental
Incident” means:
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(a)
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any
release of Environmentally Sensitive Material from a Ship;
or
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(b)
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any
incident in which Environmentally Sensitive Material is released from a
vessel other than a Ship and which involves a collision between a Ship and
such other vessel or some other incident of navigation or operation, in
either case, in connection with which a Ship is actually or potentially
liable to be arrested, attached, detained or injuncted and/or a Ship or an
Owner and/or any operator or manager is at fault or allegedly at fault or
otherwise liable to any legal or administrative action;
or
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(c)
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any
other incident in which Environmentally Sensitive Material is released
otherwise than from a Ship and in connection with which a Ship is actually
or potentially liable to be arrested and/or where an Owner and/or any
operator or manager of a Ship is at fault or allegedly at fault or
otherwise liable to any legal or administrative
action;
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“Environmental
Law” means any law relating to pollution or protection of the
environment, to the carriage of Environmentally Sensitive Material or to actual
or threatened releases of Environmentally Sensitive Material;
“Environmentally Sensitive
Material” means oil, oil products and any other substance
(including any chemical, gas or other hazardous or noxious substance) which is
(or is capable of being or becoming) polluting, toxic or hazardous;
“Event of
Default” means any of the events or circumstances described in
Clause 19.1;
“Existing
Charter” means, in relation to:
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(a)
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“AMORE
MIO II”, a time charter in respect of that Ship dated 12 September 2007
and made between Baymont and BP;
and
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(b)
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“ARISTOFANIS”,
a time charter in respect of that Ship dated 23 June 2005 and made between
Forbes and Shell;
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“Existing
Owners” means each of:
(a) Xxxxxx
Shipholding Inc. (“Xxxxxx”);
(b) Atlantas
Shipping Company (“Atlantas”);
(c) Baymont
Enterprises Incorporated (“Baymont”); and
(d) Forbes
Maritime Co. (“Forbes”),
each a
corporation incorporated under the laws of the Republic of the Xxxxxxxx Islands
whose registered office is at Trust Company House, Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, the Xxxxxxxx Islands or, in the case of
Baymont, under the laws of
Liberia, whose registered office is at 00 Xxxxx Xxxxxx, Xxxxxxxx, and, in the
singular, means one of them;
“Existing
Ships” means, together, “AMORE MIO II”, “ARISTOFANIS”,
“ARISTIDIS” and “ALKIVIADIS” and in the singular means any of them;
“Fee Letter” means a letter
issued or to be issued by the Borrower to the Facility Agent in which the
Borrower agrees to pay certain fees to the Facility Agent in connection with
this Agreement;
“Finance
Documents” means:
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(a)
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this
Agreement;
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(b)
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the
Master Agreement;
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(c)
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the
Agency and Trust Agreement;
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(d)
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the
Guarantees;
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(e)
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the
Master Agreement Assignment;
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(f)
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the
General Assignments;
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(g)
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the
Mortgages;
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(h)
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the
Deeds of Covenant;
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(i)
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the
Earnings Account Pledges;
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(j)
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the
Retention Account Pledge;
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(k)
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the
Swap Account Pledge;
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(l)
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the
Management Agreement Assignments;
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(m)
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any
Charterparty Assignments;
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(n)
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any
Bareboat Charter Security
Agreements;
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(o)
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the
Approved Manager’s Undertakings;
and
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(p)
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any
other document (whether creating a Security Interest or not) which is
executed at any time by the Borrower, an Owner or any other person as
security for, or to establish any form of subordination or priorities
arrangement in relation to, any amount payable to the Lenders under this
Agreement or any of the documents referred to in this
definition;
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“Final Maturity
Date” means 30 March 2018;
“Financial
Indebtedness” means, in relation to a person (the “debtor”), a
liability of the debtor:
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(a)
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for
principal, interest or any other sum payable in respect of any moneys
borrowed or raised by the debtor;
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(b)
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under
any loan stock, bond, note or other security issued by the
debtor;
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(c)
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under
any acceptance credit, guarantee or letter of credit facility made
available to the debtor;
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(d)
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under
a financial lease, a deferred purchase consideration arrangement or any
other agreement having the commercial effect of a borrowing or raising of
money by the debtor;
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(e)
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under
any interest or currency swap or any other kind of derivative transaction
entered into by the debtor or, if the agreement under which any such
transaction is entered into requires netting of mutual liabilities, the
liability of the debtor for the net amount;
or
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(f)
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under
a guarantee, indemnity or similar obligation entered into by the debtor in
respect of a liability of another person which would fall within (a) to
(e) if the references to the debtor referred to the other
person;
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“Fleet
Vessels” means all of the vessels (including, but not limited
to, the Ships) from time to time wholly owned by members of the Group (each a
“Fleet
Vessel”);
“Forbes” means Forbes Maritime
Co., a corporation incorporated and existing under the laws of the Republic of
the Marshaall Islands and having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands.
“General
Assignment” means, in relation to a Ship, a general assignment
of the Earnings, the Insurances and any Requisition Compensation, in such form
as the Lenders may approve or require and in the plural means all of
them;
“Group” means the
Borrower and its subsidiaries (whether direct or indirect and including, but not
limited to, each Owner) from time to time during the Security
Period and “member
of the Group” shall be construed accordingly;
“Guarantee” means,
in relation to an Owner, the guarantee to be given by that Owner in favour of
the Security Trustee, guaranteeing the obligations of the Borrower under this
Agreement and the other Finance Documents, in such form as the Lenders may
approve or require and in the plural means all of them;
“Initial Borrowing
Date” means the first Drawdown Date under this
Agreement;
“Insurances” means,
in relation to a Ship:
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(a)
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all
policies and contracts of insurance, including entries of such Ship in any
protection and indemnity or war risks association, which are effected in
respect of such Ship, her Earnings or otherwise in relation to her;
and
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(b)
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all
rights and other assets relating to, or derived from, any of the
foregoing, including any rights to a return of a
premium;
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“Interest
Period” means a period determined in accordance with Clause
6;
“ISM Code” means, in
relation to its application to each Owner, its Ship and its
operation:
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(a)
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‘The
International Management Code for the Safe Operation of Ships and for
Pollution Prevention’, currently known or referred to as the ‘ISM Code’,
adopted by the Assembly of the International Maritime Organisation by
Resolution A.741(18) on 4 November 1993 and incorporated on 19 May 1994
into chapter IX of the International Convention for the Safety of Life at
Sea 1974 (SOLAS 1974); and
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(b)
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all
further resolutions, circulars, codes, guidelines, regulations and
recommendations which are now or in the future issued by or on behalf of
the International Maritime Organisation or any other entity with
responsibility for implementing the ISM Code, including without
limitation, the ‘Guidelines on implementation or administering of the
International Safety Management (ISM) Code by Administrations’ produced by
the International Maritime Organisations pursuant to Resolution A.788(19)
adopted on 25 November 1995,
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as the
same may be amended, supplemented or replaced from time to time;
“ISM Code
Documentation” includes:
|
|
(a)
|
the
document of compliance (DOC) and safety management certificate (SMC)
issued pursuant to the ISM Code in relation to the Ships or either or them
within the periods specified by the ISM Code;
and
|
|
|
(b)
|
all
other documents and data which are relevant to the ISM SMS and its
implementation and verification which the Facility Agent may require;
and
|
|
|
(c)
|
any
other documents which are prepared or which are otherwise relevant to
establish and maintain the Ships’ or the Owners’ compliance with the ISM
Code which the Facility Agent may
require;
|
“ISM SMS” means the
safety management system for each Ship which is required to be developed,
implemented and maintained under the ISM Code;
“ISPS Code” means
the International Ship and Port Facility Security Code constituted pursuant to
resolution A.924 (22) of the International Maritime Organisation (“IMO”) adopted by a Diplomatic
conference of the IMO on Maritime Security on 13 December 2002 and now set out
in Chapter XI-2 of the Safety of Life at Sea Convention (SOLAS) 1974 (as
amended) to take effect on 1 July 2004;
“ISSC” means a valid
and current International Ship Security Certificate issued under the ISPS
Code;
“Lender” means,
subject to Clause 26.6:
|
|
(a)
|
a
bank or financial institution listed in Schedule 1 and acting through its
branch indicated in Schedule 1 (or through another branch notified to the
Borrower under Clause 26.14) unless it has delivered a Transfer
Certificate or Certificates covering the entire amounts of its Commitment
and its Contribution; and
|
|
|
(b)
|
the
holder for the time being of a Transfer
Certificate;
|
“LIBOR” means, for
an Interest Period:
|
|
(a)
|
the
rate per annum equal to the offered quotation for deposits in Dollars for
a period equal to, or as near as possible equal to, the relevant Interest
Period which appears on the appropriate page of the Reuters Monitor Money
Rates Service at or about 11.00 a.m. (London time) on the Quotation Date
for that Interest Period or on such other service as may be nominated by
the British Bankers’ Association as the information vendor for the purpose
of displaying British Bankers’ Association Interest Settlement Rates for
Dollars; or
|
|
|
(b)
|
if
no rate is quoted on the appropriate page of the Reuters Monitor Money
Rates Service, the rate per annum determined by the Facility Agent to be
the arithmetic mean (rounded upwards, if necessary, to the nearest
one-sixteenth of one per cent.)
of the rates per annum notified to the Facility Agent by each Lender as
the rate at which deposits in Dollars are offered to
that Lender by leading banks in the London Interbank Market at that
Lender’s request at or about 11.00 a.m. (London time) on the Quotation
Date for that Interest Period for a period equal to that Interest Period
and for delivery on the first Business Day of
it;
|
“Liquid
Assets” means, at any relevant time hereunder, the aggregate
of:
|
|
(a)
|
cash
in hand or held with banks or other financial institutions of the Borrower
and/or any other member of the Group in Dollars or another currency freely
convertible into Dollars,;
|
|
|
(b)
|
the
market value of transferable certificates of deposit in a freely
convertible currency acceptable to the Lenders (being for the purposes of
this Agreement, Dollars, Japanese Yen, Swiss Francs, Euros or Sterling)
issued by a prime international bank;
and
|
|
|
(c)
|
the
market value of equity securities (if and to the extent that the Facility
Agent is satisfied that such equity securities are readily saleable for
cash and that there is a ready market therefor) and investment grade debt
securities which are publicly traded on a major stock exchange or
investment market (valued at market value as at any applicable date of
determination);
|
in each
case owned by the Borrower or any other member of the Group where:
|
|
(i)
|
the
market value of any asset specified in paragraph (b) and (c) shall be the
bid price quoted for it on the relevant calculation date by the Facility
Agent: and
|
|
|
(ii)
|
the
amount or value of any asset denominated in a currency other than Dollars
shall be converted into Dollars using the Facility Agent’s spot rate for
the purchase of Dollars with that currency on the relevant calculation
date.
|
“Loan” means the
principal amount of the Advances for the time being outstanding under this
Agreement;
“Major
Casualty” means, in relation to a Ship, any casualty to the
Ship in respect of which the claim or the aggregate of the claims against all
insurers, before adjustment for any relevant franchise or deductible, exceeds
$750,000 or the equivalent in any other currency;
“Majority
Lenders” means:
|
|
(a)
|
at
any time when no Advances are outstanding, Lenders whose Commitments total
66 2/3 per cent. of the Total Commitments;
and
|
|
|
(b)
|
at
any other time, Lenders whose Contributions total 66 2/3 per cent. of the
Loan;
|
“Management
Agreement” means, in relation to each Ship, an agreement made
or to be made between (i) the Owner of that Ship and (ii) the Approved Manager
in respect of the commercial and technical management of the Ship to be in form
and substance in all respects reasonably acceptable to the Lenders and, in the
plural, means both of them;
“Management Agreement
Assignment” means, in relation to each Management Agreement,
the first priority assignment of the rights and interests of the relevant Owner
under
that Management Agreement in such form as the Lenders may approve or require
and, in the plural, means all of them;
“Mandated Lead
Arranger” means HSH Nordbank AG, acting through its office at
Xxxxxxx-Xxxxxxxxx-Xxxxx 00, 00000 Xxxxxxx, Xxxxxxx;
“Mandatory Cost
Rate” means, in relation to the Loan, the cost calculated as a
percentage rate per annum incurred by a Lender as a result of compliance with
any applicable regulatory or central bank requirements, including any reserve
costs imposed by the European Central Bank or the European System of Central
Banks;
“Margin” means,
subject to Clause 5.14, 1.10 per cent. per annum;
“Market
Value” means, in respect of each Ship and each Fleet Vessel,
the market value thereof determined from time to time in accordance with Clause
15.4;
“Master Agreement” means a
master agreement (on the 1992 or, as the case may be, 2002 ISDA (Multicurrency -
Crossborder) form) made between the Borrower and the Swap Bank and includes all
Designated Transactions from time to time entered into and Confirmations from
time to time exchanged under the master agreement;
“Master Agreement Assignment”
means the assignment of the Master Agreement in such form as the Lenders may
approve or require;
“Mortgage” means, in
relation to a Ship, the first preferred or, as the case may be, priority ship
mortgage on the Ship under the relevant Approved Flag executed by the Owner of
that Ship in favour of the Security Trustee, in such form as the Lenders may
approve or require;
“Negotiation
Period” has the meaning given in Clause 5.8;
“Net Interest
Expenses” means, in respect of the relevant
period:
|
|
(a)
|
the
aggregate of all interest payable by any member of the Group on any
Financial Indebtedness (excluding any amounts owing by one member of the
Group to another member of the Group) and any net amounts payable under
interest rate hedge agreements,
less
|
|
|
(b)
|
the
aggregate of all interest received by any member of the Group arising from
any Liquid Assets and any net amounts received by any member of the Group
under interest rate hedge
agreements;
|
“Notifying
Lender” has the meaning given in Clause 23.1 or Clause 24.1 as
the context requires;
“Owner” means:
|
|
(a)
|
in
relation to each Existing Ship, the Existing Owner thereof;
and
|
|
|
(b)
|
in
relation to each Additional Ship, the Additional Ship Owner
thereof;
|
“Partnership
Agreement” means the first amended and restated agreement of
limited partnership in respect of the Borrower made between Capital GP L.L.C., a
Xxxxxxxx Islands limited liability company, as general partner, and Capital
Maritime and Trading Corp., a Xxxxxxxx Islands corporation, as organisational
limited partner;
“Payment
Currency” has the meaning given in Clause 21.5;
“Permitted Security
Interests” means:
|
|
(a)
|
Security
Interests created by the Finance
Documents;
|
|
|
(b)
|
liens
for unpaid crew’s wages in accordance with usual maritime
practice;
|
|
|
(c)
|
liens
for salvage;
|
|
|
(d)
|
liens
arising by operation of law for not more than 2 months’ prepaid hire under
any charter in relation to a Ship not prohibited by this
Agreement;
|
|
|
(e)
|
liens
for master’s disbursements incurred in the ordinary course of trading and
any other lien arising by operation of law or otherwise in the ordinary
course of the operation, repair or maintenance of a Ship, provided such
liens do not secure amounts more than 45 days overdue (unless the overdue
amount is being contested by the relevant Owner in good faith by
appropriate steps) and subject, in the case of liens for repair or
maintenance, to Clause 14.13(e);
|
|
|
(f)
|
any
Security Interest created in favour of a plaintiff or defendant in any
action of the court or tribunal before whom such action is brought as
security for costs and expenses where the Borrower is prosecuting or
defending such action in good faith by appropriate steps;
and
|
|
|
(g)
|
Security
Interests arising by operation of law in respect of taxes which are not
overdue for payment other than taxes being contested in good faith by
appropriate steps and in respect of which appropriate reserves have been
made;
|
“Pertinent Jurisdiction”, in
relation to a company, means:
|
|
(a)
|
England
and Wales;
|
|
|
(b)
|
the
country under the laws of which the company is incorporated or
formed;
|
|
|
(c)
|
a
country in which the company’s central management and control is or has
recently been exercised;
|
|
|
(d)
|
a
country in which the overall net income of the company is subject to
corporation tax, income tax or any similar
tax;
|
|
|
(e)
|
a
country in which assets of the company (other than securities issued by,
or loans to, related companies) having a substantial value are situated,
in which the company maintains a permanent place of business, or in which
a Security Interest created by the company must or should be registered in
order to ensure its validity or priority;
and
|
|
|
(f)
|
a
country the courts of which have jurisdiction to make a winding up,
administration or similar order in relation to the company or which would
have such jurisdiction if their assistance were requested by the courts of
a country referred to in paragraphs (b) or (c)
above;
|
“Potential Event of
Default” means an event or circumstance which, with the giving
of any notice, the lapse of time, a determination of the Majority Lenders and/or
the satisfaction of any other condition, would constitute an Event of
Default;
“Quotation Date” means, in
relation to any Interest Period (or any other period for which an interest rate
is to be determined under any provision of a Finance Document), the day on which
quotations would ordinarily be given by leading banks in the London Interbank
Market
for deposits in the currency in relation to which such rate is to be determined
for delivery on the first day of that Interest Period or other
period;
“Relevant Distribution Declaration
Date” has the meaning given in Clause 8.2(a);
“Relevant
Person” has the meaning given in Clause 19.9;
“Repayment
Date” means a date on which a repayment is required to be made
under Clause 8;
“Repayment
Instalment” has the meaning given to that item in Clause
8.2(b);
“Requisition
Compensation” includes all compensation or other moneys
payable by reason of any act or event such as is referred to in paragraph (b) of
the definition of “Total Loss”;
“Retention Account” means an
account in the name of the Borrower with the Facility Agent in Hamburg
designated “Capital Product Partners L.P. - Retention Account” which is
designated by the Facility Agent in writing as the Retention Account for the
purposes of this Agreement and to which transfers are only to be made in the
circumstances referred to in Clause 8.2(a);
“Retention Account Pledge”
means a pledge agreement creating security in favour of the Security Trustee in
respect of the Retention Account in such form as the Lenders may approve or
require;
“Revolving
Facility” means the aggregate principal amount of up to
$350,000,000 which may be drawn by the Borrower in accordance with the terms and
conditions of this Agreement or, as the context may require, the aggregate
principal amount of the Advances outstanding under this Agreement at any time
prior to the conversion of the Revolving Facility into the Term Loan pursuant to
Clause 8.1;
“Secured
Liabilities” means all liabilities which the Borrower, the
Security Parties or any of them have, at the date of this Agreement or at any
later time or times, under or by virtue of the Finance Documents or any judgment
relating to the Finance Documents; and for this purpose, there shall be
disregarded any total or partial discharge of these liabilities, or variation of
their terms, which is effected by, or in connection with, any bankruptcy,
liquidation, arrangement or other procedure under the insolvency laws of any
country;
“Security Cover
Ratio” means the ratio which is determined at any time by
comparing the aggregate Market Value of the Ships subject to a Mortgage at the
relevant time against the Loan;
“Security
Interest” means:
|
|
(a)
|
a
mortgage, charge (whether fixed or floating) or pledge, any maritime or
other lien or any other security interest of any
kind;
|
|
|
(b)
|
the
rights of the plaintiff under an action in rem in which the
vessel concerned has been arrested or a writ has been issued or similar
step taken; and
|
|
|
(c)
|
any
arrangement entered into by a person (A) the effect of which is to place
another person (B) in a position which is similar, in economic terms, to
the position in which B would have been had he held a security interest
over an asset of A; but (c) does not apply to a right of set off or
combination of accounts conferred by the standard terms of business of a
bank or financial institution;
|
“Security
Party” means each of the Owners and any other person (except a
Creditor Party and any charterer of any Ship) who, as a surety or mortgagor, as
a party to any subordination or priorities arrangement, or in any similar
capacity, executes a document falling within the final paragraph of the
definition of “Finance Documents”;
“Security
Period” means the period commencing on the date of this
Agreement and ending on the date on which the Facility Agent notifies the
Borrower, the Security Parties and the Lenders that:
|
|
(a)
|
all
amounts which have become due for payment by the Borrower or any Security
Party under the Finance Documents have been
paid;
|
|
|
(b)
|
no
amount is owing or has accrued (without yet having become due for payment)
under any Finance Document;
|
|
|
(c)
|
neither
the Borrower nor any Security Party has any future or contingent liability
under Clause 20, 21 or 22 below or any other provision of this Agreement
or another Finance Document; and
|
|
|
(d)
|
the
Facility Agent, the Security Trustee and the Majority Lenders do not
consider that there is a significant risk that any payment or transaction
under a Finance Document would be set aside, or would have to be reversed
or adjusted, in any present or possible future bankruptcy of the Borrower
or a Security Party or in any present or possible future proceeding
relating to a Finance Document or any asset covered (or previously
covered) by a Security Interest created by a Finance
Document;
|
“Security
Trustee” means HSH Nordbank AG or any successor of it
appointed under clause 5 of the Agency and Trust Agreement;
“Shell” means Shell
International Trading & Shipping Ltd., acting through its office in London
or any wholly owned subsidiary of Royal Dutch Shell plc.;
“Ships” means,
together, the Existing Ships and the Additional Ships, and in the singular means
any of them;
“Swap Account” means
an account in the name of the Borrower with the Facility Agent in Hamburg
designated “Capital Product Partners L.P. - Swap Account”, which is designated
by the Facility Agent as the Swap Account for the purposes of this
Agreement;
“Swap Account
Pledge” means a pledge agreement creating security in favour
of the Security Trustee in respect of the Swap Account in such form as the
Lenders may approve or require;
“Swap Bank” means
HSH Nordbank AG acting through its office at Xxxxxxxxxxx 0, X-00000 Xxxx,
Xxxxxxx;
“Swap Exposure” means, as at
any relevant date, the amount certified by the Swap Bank to the Facility Agent
to be the aggregate net amount in Dollars which would be payable by the Borrower
to the Swap Bank under (and calculated in accordance with) section 6(e)
(Payments on Early Termination) of the Master Agreement if an Early Termination
Date had occurred on the relevant date in relation to all continuing Designated
Transactions entered into between the Borrower and the Swap Bank;
“Term Loan” means,
on the Termination Date, the aggregate principal amount of all the Advances
(following the conversion of the Revolving Facility to the Term Loan pursuant
to Clause
8.1) and, at all times thereafter, the Loan for the time being outstanding under
this Agreement;
“Termination
Date” means 30 March 2013 (as such date may be extended
pursuant to Clause 4.9);
“Total Indebtedness” means
the aggregate Financial Indebtedness of the Group as stated in the most recent
Accounting Information;
“Total Loss” means,
in relation to a Ship:
|
|
(a)
|
actual,
constructive, compromised, agreed or arranged total loss of the
Ship;
|
|
|
(b)
|
any
expropriation, confiscation, requisition or acquisition of the Ship,
whether for full consideration, a consideration less than her proper
value, a nominal consideration or without any consideration, which is
effected by any government or official authority or by any person or
persons claiming to be or to represent a government or official authority,
excluding a requisition for hire for a fixed period not exceeding one year
without any right to an extension;
|
|
|
(c)
|
any
condemnation of the Ship by any tribunal or by any person or person
claiming to be a tribunal;
|
|
|
(d)
|
any
arrest, capture, seizure or detention of the Ship (including any hijacking
or theft) unless she is within 90 days redelivered to the full control of
the Owner owning the Ship;
|
“Total Loss
Date” means, in relation to a Ship:
|
|
(a)
|
in
the case of an actual loss of the Ship, the date on which it occurred or,
if that is unknown, the date when the Ship was last heard
of;
|
|
|
(b)
|
in
the case of a constructive, compromised, agreed or arranged total loss of
the Ship, the earliest of:
|
|
|
(i)
|
the
date on which a notice of abandonment is given to the insurers;
and
|
|
|
(ii)
|
the
date of any compromise, arrangement or agreement made by or on behalf of
the Owner owning the Ship, with the Ship’s insurers in which the insurers
agree to treat the Ship as a total loss;
and
|
|
|
(c)
|
in
the case of any other type of total loss, on the date (or the most likely
date) on which it appears to the Facility Agent that the event
constituting the total loss
occurred;
|
“Tranche A” means an
amount of up to $57,500,000 to be made available by the Lenders to the Borrower
in up to two Advances pursuant to the terms of this Agreement and which shall be
on-lent by the Borrower to the Owners of the Tranche A Ships to assist such
Owners in refinancing up to 50 per cent. of the aggregate Market Value of the
Tranche A Ships or, as the context may require, the aggregate principal amount
thereof outstanding at the relevant time under this Agreement;
“Tranche A
Ships” means, together, “AMORE MIO II” and “ARISTOFANIS” and
in the singular means either of them;
“Tranche B” means an
amount of up to $52,500,000 to be made available by the Lenders to the Borrower
in up to two Advances pursuant to the terms of this Agreement and which
shall be
on-lent by the Borrower to the Owners of the Tranche B Ships to assist such
Owners in refinancing up to 50 per cent. of the aggregate Market Value of the
Tranche B Ships or, as the context may require, the aggregate principal amount
thereof outstanding at the relevant time under this Agreement;
“Tranche B
Ships” means, together, “ARISTIDIS” and “ALKIVIADIS”, and in
the singular means either of them;
“Tranche C” means an
amount of up to $240,000,000 to be made available by the Lenders to the Borrower
in multiple Advances (which shall not exceed the number of Additional Ships at
any relevant time subject to a Mortgage) pursuant to the terms of this Agreement
and which shall be on-lent by the Borrower to the Owners of the Additional Ships
to assist such Owners in financing up to 50 per cent. of the aggregate Market
Value of the Additional Ships or in part-financing the acquisition of shares in
an Additional Ship Owner or, as the context may require, the aggregate principal
amount thereof outstanding at the relevant time under this
Agreement;
“Tranches” mean
together, Tranche A, Tranche B and Tranche C, and in the singular
means any of them;
“Transaction” has
the meaning given in the Master Agreement;
“Transfer
Certificate” has the meaning given in Clause
26.2;
“Trust Property” has the
meaning given in clause 3.1 of the Agency and Trust Agreement; and
“US GAAP” means
generally accepted accounting principles as from time to time in effect in the
United States of America.
|
1.2
|
Construction of certain
terms. In this
Agreement:
|
“approved” means,
for the purposes of Clause 13, approved in writing by the Facility
Agent;
“asset” includes every kind of
property, asset, interest or right, including any present, future or contingent
right to any revenues or other payment;
“company” includes any
partnership, joint venture and unincorporated association;
“consent” includes an
authorisation, consent, approval, resolution, licence, exemption, filing,
registration, notarisation and legalisation;
“contingent liability” means a
liability which is not certain to arise and/or the amount of which remains
unascertained;
“document” includes a deed;
also a letter, fax or telex;
“excess
risks” means, in relation to a Ship, the proportion of claims
for general average, salvage and salvage charges not recoverable under the hull
and machinery policies in respect of the Ship in consequence of her insured
value being less than the value at which the Ship is assessed for the purpose of
such claims;
“expense” means any kind of
cost, charge or expense (including all legal costs, charges and expenses) and
any applicable value added or other tax;
“law” includes any form of
delegated legislation, any order or decree, any treaty or international
convention and any regulation or resolution of the Council of the European
Union, the European Commission, the United Nations or its Security
Council;
“legal or administrative
action” means any legal proceeding or arbitration and any administrative
or regulatory action or investigation;
“liability” includes every kind
of debt or liability (present or future, certain or contingent), whether
incurred as principal or surety or otherwise;
“months” shall be
construed in accordance with Clause 1.3;
“obligatory
insurances” means, in relation to a Ship, all insurances
effected, or which the Borrower owning the Ship is obliged to effect, under
Clause 13 below or any other provision of this Agreement or another Finance
Document;
“parent company” has
the meaning given in Clause 1.4;
“person” includes
any company; any state, political sub-division of a state and local or municipal
authority; and any international organisation;
“policy”, in relation to any
insurance, includes a slip, cover note, certificate of entry or other document
evidencing the contract of insurance or its terms;
“protection and indemnity
risks” means the usual risks covered by a protection and
indemnity association managed in London, including pollution risks and the
proportion (if any) of any sums payable to any other person or persons in case
of collision which are not recoverable under the hull and machinery policies by
reason of the incorporation therein of clause 1 of the Institute Time Clauses
(Hulls)(1/10/83) or clause 8 of the Institute Time Clauses (Hulls) (1/11/1995)
or the Institute Amended Running Down Clause (1/10/71) or any equivalent
provision;
“regulation” includes any
regulation, rule, official directive, request or guideline (either having the
force of law or compliance with which is reasonable in the ordinary course of
business of the party concerned) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other
authority or organisation;
“subsidiary” has the
meaning given in Clause 1.4;
“successor” includes any person
who is entitled (by assignment, novation, merger or otherwise) to any other
person’s rights under this Agreement or any other Finance Document (or any
interest in those rights) or who, as administrator, liquidator or otherwise, is
entitled to exercise those rights; and in particular references to a successor
include a person to whom those rights (or any interest in those rights) are
transferred or pass as a result of a merger, division, reconstruction or other
reorganisation of it or any other person;
“tax” includes any
present or future tax, duty, impost, levy or charge of any kind which is imposed
by any state, any political sub-division of a state or any local or municipal
authority (including any such imposed in connection with exchange controls), and
any connected penalty, interest or fine; and
“war risks” means
the risks according to Institute War and Strike Clauses (Hull Time) (1/10/83) or
(1/11/95), or equivalent conditions, including, but not limited to risk of
mines, blocking and trapping, missing vessel, confiscation and all risks
excluded from the standard form of English or other marine policy.
|
1.3
|
Meaning of
“month”. A period of one or more “months” ends on the
day in the relevant calendar month numerically corresponding to the day of
the calendar month on which the period started (“the numerically corresponding
day”), but:
|
|
(a)
|
on
the Business Day following the numerically corresponding day if the
numerically corresponding day is not a Business Day or, if there is no
later Business Day in the same calendar month, on the Business Day
preceding the numerically corresponding day;
or
|
|
(b)
|
on
the last Business Day in the relevant calendar month, if the period
started on the last Business Day in a calendar month or if the last
calendar month of the period has no numerically corresponding
day,
|
and
“month” and “monthly” shall be construed
accordingly.
|
1.4
|
Meaning of “subsidiary”.
A company (S) is a subsidiary of another company (P)
if:
|
|
(a)
|
a
majority of the issued shares in S (or a majority of the issued shares in
S which carry unlimited rights to capital and income distributions) are
directly owned by P or are indirectly attributable to P;
or
|
|
(b)
|
P
has direct or indirect control over a majority of the voting rights
attached to the issued shares of S;
or
|
|
(c)
|
P
has the direct or indirect power to appoint or remove a majority of the
directors of S,
|
and
any company of which S is a subsidiary is a parent company of S.
|
1.5
|
General
Interpretation.
|
|
(a)
|
In
this Agreement:
|
|
|
(i)
|
references
to, or to a provision of, a Finance Document or any other document are
references to it as amended or supplemented, whether before the date of
this Agreement or otherwise;
|
|
|
(ii)
|
references
to, or to a provision of, any law include any amendment, extension,
re-enactment or replacement, whether made before the date of this
Agreement or otherwise; and
|
|
|
(iii)
|
words
denoting the singular number shall include the plural and vice
versa.
|
|
(b)
|
Clauses
1.1 to 1.4 and paragraph (a) of this Clause 1.5 apply unless the contrary
intention appears.
|
|
(c)
|
References
in Clause 1.1 to a document being in the form of a particular Appendix
include references to that form with any modifications to that form which
the Facility Agent (with the authorisation of the Majority Lenders in the
case of substantial modifications) approves or reasonably
requires.
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|
(d)
|
The
clause headings shall not affect the interpretation of this
Agreement.
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|
2
|
|
2.1
|
Amount of
facilities. Subject to the other provisions of this
Agreement, the Lenders shall make available to the Borrower revolving
credit and term loan facilities not exceeding $350,000,000 in aggregate at
any time. The revolving credit facility shall initially be made
available in three Tranches as
follows:
|
|
(a)
|
Tranche
A shall be in an amount not exceeding
$57,500,000;
|
|
(b)
|
Tranche
B shall be in an amount not exceeding
$52,500,000;
|
|
(c)
|
Tranche
C shall be in an amount not exceeding $240,000,000;
and
|
|
(d)
|
Tranche
A and Tranche B may each be drawn in up to two Advances each and Tranche C
may be drawn in multiple Advances, with each Additional Ship (or the
acquisition of the shares in an Additional Ship Owner) being part-financed
by not more than one Advance.
|
|
2.2
|
Consolidation of
Tranches. On the Drawdown Date of the Advance under
Tranche C which will result in Tranche C being fully drawn, all the
Tranches shall be consolidated to form a single tranche constituting the
Revolving Facility.
|
|
3.1
|
Interests of Lenders and Swap
Bank several. The rights of the Lenders and the Swap
Bank under this Agreement and the Master Agreement are several;
accordingly:
|
|
(a)
|
each
Lender shall be entitled to xxx for any amount which has become due and
payable by the Borrower to it under this Agreement;
and
|
|
(b)
|
the
Swap Bank shall be entitled to xxx for any amount which has become due and
payable by the Borrower to it under the Master
Agreement,
|
without
joining the Facility Agent, the Security Trustee, any other Lender or the Swap
Bank as additional parties in the proceedings.
|
3.2
|
Proceedings by individual
Lender or Swap Bank. However, without the prior consent
of the Majority Lenders, no Lender and the Swap Bank may bring proceedings
in respect of:
|
|
(a)
|
any
other liability or obligation of the Borrower or a Security Party under or
connected with a Finance Document or the Master Agreement;
or
|
|
(b)
|
any
misrepresentation or breach of warranty by the Borrower or a Security
Party in or connected with a Finance Document or the Master
Agreement.
|
|
3.3
|
Obligations
several. The obligations of the Lenders under this
Agreement and of the Swap Bank under the Master Agreement are several; and
a failure of a Lender to perform its obligations under this Agreement or
of the Swap Bank to perform its obligations under the Master Agreement
shall not result in:
|
|
(a)
|
the
obligations of the other Lenders being increased;
nor
|
|
(b)
|
the
Borrower, any Security Party or any other Creditor Party being discharged
(in whole or in part) from its obligations under any Finance
Document;
|
|
and
in no circumstances shall a Lender or the Swap Bank have any
responsibility for a failure of another Lender or the Swap Bank to perform
its obligations under this Agreement or the Master
Agreement.
|
|
3.4
|
Parties bound by certain
actions of Majority Lenders. Every Lender, the Swap
Bank, the Borrower and each Security Party shall be bound
by:
|
|
(a)
|
any
determination made, or action taken, by the Majority Lenders under any
provision of a Finance Document;
|
|
(b)
|
any
instruction or authorisation given by the Majority Lenders to the Facility
Agent or the Security Trustee under or in connection with any Finance
Document;
|
|
(c)
|
any
action taken (or in good faith purportedly taken) by the Facility Agent or
the Security Trustee in accordance with such an instruction or
authorisation.
|
|
3.5
|
Reliance on action of Facility
Agent. However, the Borrower and each Security
Party:
|
|
(a)
|
shall
be entitled to assume that the Majority Lenders have duly given any
instruction or authorisation which, under any provision of a Finance
Document, is required in relation to any action which the Facility Agent
has taken or is about to take; and
|
|
(b)
|
shall
not be entitled to require any evidence that such an instruction or
authorisation has been given.
|
|
3.6
|
Construction. In
Clauses 3.4 and 3.5 references to action taken include (without
limitation) the granting of any waiver or consent, an approval of any
document and an agreement to any
matter.
|
|
4
|
|
4.1
|
Request for
Advance. Subject to the following conditions, the
Borrower may request an Advance to be made by ensuring that the Facility
Agent receives a completed Drawdown Notice not later than 11.00 a.m.
(Hamburg time) 3 Business Days prior to the intended Drawdown
Date.
|
|
4.2
|
Availability. The
conditions referred to in Clause 4.1 are
that:
|
|
(a)
|
a
Drawdown Date has to be a Business Day during the Availability
Period;
|
|
(b)
|
each
Advance under Tranche A or Tranche B shall be used in refinancing the
acquisition of a Tranche A Ship or, as the case may be, a Tranche B Ship
or in part-financing or financing the acquisition of the issued share
capital (free of any encumbrances or charges, except those permitted by
the Majority Lenders) of the Existing Owners of the Tranche A Ships and
the Tranche B Ships;
|
|
(c)
|
each
Advance under Tranche C shall be used in part-financing or refinancing the
acquisition of an Additional Ship or in part-financing or refinancing the
acquisition of shares (free of any encumbrances or charges, except those
permitted by the Majority Lenders) in an Additional Ship Owner Provided
that:
|
|
|
(i)
|
the
Borrower may draw down an Advance under Tranche C to finance or refinance
the acquisition of an Additional Ship or the whole of the issued share
capital of an Additional Ship Owner if, after such Advance is drawn down,
the then outstanding amount of the Revolving Facility does not exceed 60
per cent. of the aggregate Market Value of all Ships then subject to a
Mortgage;
|
|
|
(ii)
|
an
Advance under Tranche C may only be used to finance or refinance the
acquisition of the whole of the issued share capital of an Additional Ship
Owner if the Additional Ship Owner has entered into an Additional Ship MOA
to acquire a tanker newbuilding or the seller of the shares is Capital
Maritime & Trading Corp.; and
|
|
|
(iii)
|
subject
to the other provisions of this Agreement, an Advance under Tranche C may
only be used to finance or refinance a newbuilding upon delivery of the
same to its Owner by the relevant shipyard or by a person who has taken
delivery of the newbuilding from a shipyard and is on-selling the same to
the Owner;
|
|
(d)
|
if
any part of the Total Commitments has not been borrowed before the end of
the Availability period, the Total Commitments shall on that date be
permanently cancelled by an amount equal to such undrawn
amount.
|
|
4.3
|
Purpose of
Advances. The Borrower undertakes with each Creditor
Party to use each Advance only for the purposes stated in the Recitals to
this Agreement.
|
|
4.4
|
Notification to Lenders of
receipt of a Drawdown Notice. The Facility Agent shall
promptly notify the Lenders that it has received a Drawdown Notice and the
Facility Agent shall inform each Lender
of:
|
|
(a)
|
the
amount of the Advance and the Drawdown
Date;
|
|
(b)
|
the
amount of that Lender’s participation in the Advance;
and
|
|
(c)
|
the
duration of the first Interest
Period.
|
|
4.5
|
Drawdown Notice
irrevocable. A Drawdown Notice must be signed by a
director or other authorised person of the Borrower; and once served, a
Drawdown Notice cannot be revoked without the prior consent of the
Facility Agent, acting on the authority of the Majority
Lenders.
|
|
4.6
|
Lenders to make available
Contributions. Subject to the provisions of this
Agreement, each Lender shall, on and with value on each Drawdown Date,
make available to the Facility Agent for the account of the Borrower the
amount due from that Lender on that Drawdown Date under Clause
2.1.
|
|
4.7
|
Disbursement of
Advance. Subject to the provisions of this Agreement,
the Facility Agent shall on each Drawdown Date pay to the Borrower the
amounts which the Facility Agent receives from the Lenders under Clause
4.6; and that payment to the Borrower shall be
made:
|
|
(a)
|
to
such account which the Borrower specifies in the Drawdown Notice;
and
|
|
(b)
|
in
the like funds as the Facility Agent received the payments from the
Lenders.
|
|
4.8
|
Disbursement of Advance to
third party. The payment by the Facility Agent under
Clause 4.7 to an Additional Ship Seller or any other third party shall
constitute the making of the Advance and the Borrower shall thereupon
become indebted, as principal and direct obligor, to each Lender in an
amount equal to that Lender’s
Contribution.
|
|
4.9
|
Extension of Termination
Date. If on 30 March 2013 (for the purposes of this
Clause 4.9, the “Original
Termination Date”) the outstanding principal amount of the
Revolving Facility does not exceed 60 per cent. of the aggregate Market
Value of the Ships then subject to a Mortgage (determined by taking the
average of the aggregate Market Value of the Ships on the Original
Termination Date and on the date falling 6 months prior to the Original
Termination Date), the Borrower may, by giving the Facility Agent notice
in writing, request the extension of the Original Termination Date for a
further period of up to 3 years. If Lenders whose Contributions
total 80 per cent. of the Loan, acting in their sole and absolute
discretion, agree to extend the Original Termination Date in accordance
with this Clause 4.9 the Facility Agent shall send to the Borrower a
notice in writing advising it of the period by which the Original
Termination Date
will be extended Provided that the new
termination date shall be no later than 30 March 2016 and at all times
thereafter the term “Termination Date” shall
be read and construed to mean the new extended termination
date.
|
|
5
|
|
5.1
|
Payment of normal
interest. Subject to the provisions of this Agreement,
interest on each Advance in respect of each Interest Period shall be paid
by the Borrower in arrears on the last day of that Interest
Period.
|
|
5.2
|
Normal rate of
interest. Subject to the provisions of this Agreement,
the rate of interest on each Advance in respect of an Interest Period
shall be the aggregate of:
|
|
(a)
|
the
applicable Margin; and
|
|
(b)
|
LIBOR
for that Interest Period.
|
|
5.3
|
Payment of accrued
interest. In the case of an Interest Period longer than
3 months, accrued interest shall be paid every 3 months during that
Interest Period and on the last day of that Interest
Period.
|
|
5.4
|
Notification of Interest
Periods and rates of normal interest. The Facility Agent
shall notify the Borrower and each Lender
of:
|
|
(a)
|
each
rate of interest; and
|
|
(b)
|
the
duration of each Interest Period,
|
as soon
as reasonably practicable after each is determined.
|
5.5
|
Market
disruption. The following provisions of this Clause 5
apply if:
|
|
(a)
|
no
rate is quoted on the appropriate page of the Reuters Monitor Money Rates
Service and at least half of the total number of Lenders at any time do
not, before 1.00 p.m. (London time) on the Quotation Date for an Interest
Period, provide quotations to the Facility Agent in order to fix LIBOR;
or
|
|
(b)
|
at
least 1 Business Day before the start of an Interest Period, the majority
of the Lenders (in numbers) who together have Contributions amounting to
more than 50 per cent. of the Loan (or, if no Advance is outstanding at
the relevant time, Commitments amounting to more than 50 per cent. of the
Total Commitments) notify the Facility Agent that LIBOR fixed by the
Facility Agent would not accurately reflect the cost to those Lenders of
funding their respective Contributions (or any part of them) during the
Interest Period in the London Interbank Dollar Market at or about 11.00
a.m. (London time) on the second Business Day before the commencement of
the Interest Period; or
|
|
(c)
|
at
least 1 Business Day before the start of an Interest Period, the Facility
Agent is notified by a Lender (the “Affected Lender”) that
for any reason it is unable to obtain Dollars in the London Interbank
Market in order to fund its Contribution (or any part of it) during the
Interest Period.
|
|
5.6
|
Notification of market
disruption. The Facility Agent shall promptly notify the
Borrower and each of the Lenders stating the circumstances falling within
Clause 5.5 which have caused its notice to be
given.
|
|
5.7
|
Suspension of
drawdown. If the Facility Agent’s notice under Clause
5.6 is served before an Advance is
made:
|
|
(a)
|
in
a case falling within paragraphs (a) or (b) of Clause 5.5, the Lenders’
obligations to make the Advance;
|
|
(b)
|
in
a case falling within paragraph (c) of Clause 5.5, the Affected Lender’s
obligation to participate in the
Advance,
|
|
shall
be suspended while the circumstances referred to in the Facility Agent’s
notice continue.
|
|
5.8
|
Negotiation of alternative rate
of interest. If the Facility Agent’s notice under Clause
5.6 is served after an Advance is made, the Borrower, the Facility Agent
and the Lenders or (as the case may be) the Affected Lender shall use
reasonable endeavours to agree, within the 30 days after the date on which
the Facility Agent serves its notice under Clause 5.6 (the “Negotiation Period”), an
alternative interest rate or (as the case may be) an alternative basis for
the Lenders or (as the case may be) the Affected Lender to fund or
continue to fund their or its Contribution to the relevant Advance or
Advances during the Interest Period
concerned.
|
|
5.9
|
Application of agreed
alternative rate of interest. Any alternative interest
rate or an alternative basis which is agreed during the Negotiation Period
shall take effect in accordance with the terms
agreed.
|
|
5.10
|
Alternative rate of interest in
absence of agreement. If an alternative interest rate or
alternative basis is not agreed within the Negotiation Period, and the
relevant circumstances are continuing at the end of the
Negotiation Period, then the Facility Agent shall, with the agreement of
each Lender or (as the case may be) the Affected Lender, set an interest
period and interest rate representing the cost of funding of the Lenders
or (as the case may be) the Affected Lender in Dollars or in any available
currency of their or its Contribution to the relevant Advance or Advances
plus the applicable Margin; and the procedure provided for by this Clause
5.10 shall be repeated if the relevant circumstances are continuing at the
end of the interest period so set by the Facility
Agent.
|
|
5.11
|
Notice of
prepayment. If the Borrower does not agree with an
interest rate set by the Facility Agent under Clause 5.10, the Borrower
may give the Facility Agent not less than 15 Business Days’ notice of its
intention to prepay the relevant Advance or Advances at the end of the
interest period set by the Facility
Agent.
|
|
5.12
|
Prepayment; termination of
Commitments. A notice under Clause 5.11 shall be
irrevocable; the Facility Agent shall promptly notify the Lenders or (as
the case may require) the Affected Lender of the Borrower’ notice of
intended prepayment; and:
|
|
(a)
|
on
the date on which the Facility Agent serves that notice, the Total
Commitments or (as the case may require) the Commitment of the Affected
Lender so far as they relate to the relevant Advance shall be cancelled;
and
|
|
(b)
|
on
the last Business Day of the interest period set by the Facility Agent,
the Borrower shall prepay (without premium or penalty) the Loan or, as the
case may be, the Affected Lender’s Contribution, together with accrued
interest thereon at the applicable rate plus the applicable
Margin.
|
|
5.13
|
Application of
prepayment. The provisions of Clause 8 shall apply in
relation to the prepayment.
|
|
5.14
|
Renegotation of
Margin. The Borrower shall negotiate in good faith with
the Lenders an adjustment to the Margin which is to apply as from the date
falling on the fifth anniversary of the date of this Agreement (the “Margin Determination
Date”). The Borrower
shall use its best endeavours to ensure that such negotiations commence
not later than the date falling 30 days before the Margin Determination
Date. If:
|
|
(a)
|
an
adjustment is agreed between the parties, the Facility Agent will send to
the Borrower and the Creditor Parties a notice in writing by no later than
the date falling 5 Business Days before the Margin Determination Date
specifying the new amount of the Margin which will apply as from the
Margin Determination Date and at all times thereafter the term “Margin” shall be read
and construed to mean such amount;
or
|
|
(b)
|
an
adjustment cannot be agreed by the Margin Determination Date, the Borrower
acknowledges and agrees that the Facility Agent (acting upon the
instructions of all the Lenders) may request the Borrower to prepay the
Loan within 30 Business Days of the Facility Agent’s notice and the
Borrower agrees to make such prepayment within a 60 Business Day
period.
|
|
6.1
|
Commencement of Interest
Periods. The first Interest Period applicable to an
Advance shall commence on the relevant Drawdown Date and each subsequent
Interest Period shall commence on the expiry of the preceding Interest
Period.
|
|
6.2
|
Duration of normal Interest
Periods. Subject to Clauses 6.3 and 6.4, each Interest
Period in respect of each Advance shall
be:
|
|
(a)
|
1,
3, 6, 9 or 12 months as notified by the Borrower to the Facility Agent not
later than 11.00 a.m. (Hamburg time) 3 Business Days before the
commencement of the Interest
Period;
|
|
(b)
|
in
the case of the first Interest Period applicable to the second and any
subsequent Advance of a Tranche, a period ending on the last day of the
then current Interest Period applicable to such Tranche, whereupon all of
the Advances in respect of such Tranche shall be consolidated and treated
as a single advance;
|
|
(c)
|
3
months, if the Borrower fail to notify the Facility Agent by the time
specified in paragraph (a) above;
or
|
|
(d)
|
such
other period as the Borrower may request from the Facility Agent, which
may be agreed by the Facility Agent
|
Provided that no more than 6
Interest Periods in aggregate of 1-month’s duration may be current at any
time.
|
6.3
|
Duration of Interest Periods
for repayment instalments. In respect of an amount due
to be repaid under Clause 8 on a particular Repayment Date, an Interest
Period in relation to the relevant Tranche shall end on that Repayment
Date.
|
|
6.4
|
Non-availability of matching
deposits for Interest Period selected. If, after the
Borrower has selected an Interest Period longer than 6 months, any Lender
notifies the Facility Agent by 11.00 a.m. (Hamburg time) on the third
Business Day before the commencement of the Interest Period that it is not
satisfied that deposits in Dollars for a period equal to the Interest
Period will be available to it in the London Interbank Market when the
Interest Period commences, the Interest Period shall be of 6
months.
|
|
7.1
|
Payment of default interest on
overdue amounts. The Borrower shall pay interest in
accordance with the following provisions of this Clause 7 on any amount
payable by the Borrower
under any Finance Document which the Facility Agent, the Security Trustee
or the other designated payee does not receive on or before the relevant
date, that is:
|
|
(a)
|
the
date on which the Finance Documents provide that such amount is due for
payment; or
|
|
(b)
|
if
a Finance Document provides that such amount is payable on demand, the
date on which the demand is served;
or
|
|
(c)
|
if
such amount has become immediately due and payable under Clause 19.4, the
date on which it became immediately due and
payable.
|
|
7.2
|
Default rate of
interest. Interest shall accrue on an overdue amount
from (and including) the relevant date until the date of actual payment
(as well after as before judgment) at the rate per annum determined by the
Facility Agent to be 2 per cent.
above:
|
|
(a)
|
in
the case of an overdue amount of principal, the higher of the rates set
out at paragraphs (a) and (b) of Clause 7.3;
or
|
|
(b)
|
in
the case of any other overdue amount, the rate set out at paragraph (b) of
Clause 7.3.
|
|
7.3
|
Calculation of default rate of
interest. The rates referred to in Clause 7.2
are:
|
|
(a)
|
the
rate applicable to the overdue principal amount immediately prior to the
relevant date (but only for any unexpired part of any then current
Interest Period);
|
|
(b)
|
the
applicable Margin plus, in respect of successive periods of any duration
(including at call) up to 3 months which the Facility Agent may select
from time to time:
|
|
|
(i)
|
LIBOR;
or
|
|
|
(ii)
|
if
the Facility Agent determines that Dollar deposits for any such period are
not being made available to a Lender or (as the case may be) Lenders by
leading banks in the London Interbank Market in the ordinary course of
business, a rate from time to time determined by the Facility Agent by
reference to the cost of funds to the Facility Agent from such other
sources as the Facility Agent may from time to time
determine.
|
|
7.4
|
Notification of interest
periods and default rates. The Facility Agent shall
promptly notify the Lenders and the Borrower of each interest rate
determined by the Facility Agent under Clause 7.3 and of each period
selected by the Facility Agent for the purposes of paragraph (b) of that
Clause; but this shall not be taken to imply that the Borrower is liable
to pay such interest only with effect from the date of the Facility
Agent’s notification.
|
|
7.5
|
Payment of accrued default
interest. Subject to the other provisions of this
Agreement, any interest due under this Clause shall be paid on the last
day of the period by reference to which it was determined; and the payment
shall be made to the Facility Agent for the account of the Creditor Party
to which the overdue amount is due.
|
|
7.6
|
Compounding of default
interest. Any such interest which is not paid at the end
of the period by reference to which it was determined shall thereupon be
compounded.
|
|
7.7
|
Application to Master
Agreement. For the avoidance of doubt, this Clause 7
does not apply to any amount payable under the Master Agreement in respect
of any continuing Designated Transaction as to which section 2(e) (Default
Interest; Other Amounts) of the Master Agreement shall
apply.
|
|
8.1
|
Conversion to Term
Loan. On the Termination Date, the Revolving Facility
shall be converted into the Term
Loan.
|
|
8.2
|
Mandatory amortisation and
amount of repayments of Term Loan. The following
provisions of this Clause 8.2 shall apply to the repayment of the
Loan:
|
|
(a)
|
if
on a Distribution Declaration Date falling before the Termination Date,
the Security Cover Ratio (expressed as a percentage) is less than 125 per
cent., then the Borrower shall repay the Loan in an amount which, once
repaid, shall eliminate the shortfall. If a repayment is
required pursuant to this Clause 8.2(a) on any Distribution Declaration
Date (being the “Relevant
Distribution Declaration Date”), then the Borrower shall transfer
the amount of the repayment due under this Clause 8.2(a) into the
Retention Account no later than 5 days after the Relevant Distribution
Declaration Date. On the last day of the first Interest Period
to expire which is current as at the Relevant Distribution Declaration
Date the Facility Agent shall apply all amounts standing to the credit of
the Retention Account in or towards repayment of the Loan and the payment
of interest thereon in accordance with Clause 18.4;
and
|
|
(b)
|
after
the Termination Date, the Term Loan shall be repaid by up to 20 equal
consecutive three-monthly repayment instalments (each a “Repayment Instalment”
and together the “Repayment Instalments”)
and a final balloon instalment (the “Balloon Instalment”).
The Balloon Instalment shall be equal to 50 per cent of the Revolving
Facility on the Termination Date and each Repayment Instalment shall be in
an amount equal to one-twentieth of the amount by which the Revolving
Facility on the Termination Date exceeds the Balloon
Instalment Provided that if the
Termination Date is extended pursuant to Clause 4.9, the Balloon
Instalment shall remain unchanged but each Repayment Instalment shall be
in an amount equal to one-eighth of the original Balloon
Instalment.
|
|
8.3
|
Repayment
Dates. The first Repayment Instalment shall be repaid on
the date falling 3 months after the Termination Date, each subsequent
Repayment Instalment shall be repaid at 3-monthly intervals thereafter and
the Balloon Instalment, together with the Final Repayment Instalment,
shall be repaid on the date falling on the earlier of (a) the tenth
anniversary of the first Drawdown Date and (b) the Final Maturity
Date.
|
|
8.4
|
Final Repayment
Date. On the final Repayment Date, the Borrower shall
additionally pay to the Facility Agent for the account of the Creditor
Parties all other sums then accrued or owing under any Finance
Document.
|
|
8.5
|
Optional facility
cancellation. The Borrower shall be entitled, upon
giving to the Facility Agent not less than 3 Business Days prior written
notice (which notice shall be irrevocable), to cancel, in whole or in
part, and, if in part, by an amount not less than $1,000,000 or a higher
multiple of $1,000,000, the undrawn balance of the Revolving
Facility. Upon such cancellation taking effect on expiry of
such notice the several obligations of the Lenders to make their
respective Commitments available in relation to the portion of the Total
Commitments to which such notice relates shall terminate and the
commitment fee referred to in Clause 20.1(a)) on such portion shall cease
to accrue.
|
|
8.6
|
Voluntary
prepayment. Subject to the following conditions, the
Borrower may prepay, the whole or any part of the Loan on the last day of
an Interest Period in respect
thereof.
|
|
8.7
|
Conditions for voluntary
prepayment. The conditions referred to in Clause 8.6 are
that:
|
|
(a)
|
a
partial prepayment shall be $1,000,000 or a multiple of
$1,000,000;
|
|
(b)
|
the
Facility Agent has received from the Borrower at least 5 Business Days’
prior written notice specifying the amount to be prepaid and the date on
which the prepayment is to be made (such date to be the last day of an
Interest Period relative to the amount being so prepaid);
and
|
|
(c)
|
the
Borrower has provided evidence satisfactory to the Facility Agent that any
consent required by the Borrower or any Security Party in connection with
the prepayment has been obtained and remains in force, and that any
requirement relevant to this Agreement which affects the Borrower or any
Security Party has been complied
with.
|
|
8.8
|
Effect of notice of
prepayment. A prepayment notice may not be withdrawn or
amended without the consent of the Facility Agent, given with the
authority of the Majority Lenders, and the amount specified in the
prepayment notice shall become due and payable by the Borrower on the date
for prepayment specified in the prepayment
notice.
|
|
8.9
|
Notification of notice of
prepayment. The Facility Agent shall notify the Lenders
promptly upon receiving a prepayment notice, and shall provide any Lender
which so requests with a copy of any document delivered by the Borrower
under Clause 8.7(c).
|
|
8.10
|
Mandatory
prepayment. The Borrower shall be obliged to prepay the
Relevant Amount if a Ship is sold or becomes a Total
Loss:
|
|
(a)
|
in
the case of a sale, on or before the date on which the sale is completed
by delivery of that Ship to the buyer;
or
|
|
(b)
|
in
the case of a Total Loss, on the earlier of the date falling 150 days
after the Total Loss Date and the date of receipt by the Security Trustee
of the proceeds of insurance relating to such Total
Loss.
|
In this
Clause 8.10, “Relevant
Amount” means an amount which, after giving credit for the
amount of the prepayment made pursuant to this Clause 8.10, results in the
Security Cover Ratio being equal to the higher of (i) the Security Cover Ratio
maintained immediately prior to the prepayment made pursuant to this Clause 8.10
and (ii) the Security Cover Ratio referred to in Clause 15.1.
|
8.11
|
Amounts payable on
prepayment. A prepayment shall be made together with
accrued interest (and any other amount payable under Clause 21 below or
otherwise) in respect of the amount prepaid and, if the prepayment is not
made on the last day of an Interest Period together with any sums payable
under Clause 21.1(b) but without premium or
penalty.
|
|
8.12
|
Application of partial
prepayment. Each partial prepayment made after the
Termination Date shall be applied to reduce pro rata each Repayment
Instalment and the Balloon
Instalment.
|
|
8.13
|
Reborrowing.
|
|
(a)
|
No
amount of the Term Loan prepaid may be
reborrowed.
|
|
(b)
|
Subject
to the terms of this Agreement, any amount of the Revolving Facility
repaid or prepaid may be
reborrowed.
|
|
8.14
|
Unwinding of Designated
Transactions. On or prior to any repayment or prepayment
of the Loan under this Clause 8 or any other provision of this Agreement,
the Borrower shall wholly or partially reverse, offset, unwind or
otherwise terminate one or more of the continuing Designated Transactions
to the extent necessary to ensure that the notional principal
amount of the continuing Designated Transactions thereafter remaining does
not and will not in the future (taking into account the scheduled
amortisation) exceed the amount of the Loan as reducing from time to time
thereafter pursuant to Clause
8.2.
|
|
8.15
|
Prepayment of Swap
Benefit. If a Designated Transaction is terminated in
circumstances where the Swap Bank would be obliged to pay an amount to the
Borrower under the Master Agreement, the Borrower hereby agrees that such
payment shall be applied in prepayment of the Loan in accordance with
Clause 8.12 and authorises the Swap Bank to pay such amount to
the Facility Agent for such
purpose.
|
|
9.1
|
Documents, fees and no
default. Each Lender’s obligation to contribute to an
Advance is subject to the following conditions
precedent:
|
|
(a)
|
that
on or before the date of this Agreement, the Facility Agent receives the
fees referred to in Clause 20.1 which are due and payable at that
time;
|
|
(b)
|
that,
on or before the service of the Drawdown Notice in respect of the first
Advance of Tranche A, the Facility Agent receives the documents described
in Part A of Schedule 3 in form and substance satisfactory to the Facility
Agent and its lawyers;
|
|
(c)
|
that,
on or before the service of the Drawdown Notice in respect of each Advance
of Tranche A and Tranche B, the Facility Agent receives the
documents described in Part B of Schedule 3 in form and substance
satisfactory to the Facility Agent and its
lawyers;
|
|
(d)
|
that,
on or before the service of the Drawdown Notice in respect of each Advance
of Tranche C, the Facility Agent receives the documents described in Part
C of Schedule 3 in form and substance satisfactory to the Facility Agent
and its lawyers;
|
|
(e)
|
that
both at the date of each Drawdown Notice and at each Drawdown
Date:
|
|
|
(i)
|
no
Event of Default or Potential Event of Default has occurred and is
continuing or would result from the borrowing of the relevant Advance;
and
|
|
|
(ii)
|
the
representations and warranties in Clause 10 and those of the Borrower or
any Security Party which are set out in the other Finance Documents would
be true and not misleading if repeated on each of those dates with
reference to the circumstances then existing;
and
|
|
|
(iii)
|
none
of the circumstances contemplated by Clause 5.5 has occurred and is
continuing;
|
|
|
(iv)
|
there
has been no material adverse change in the financial condition, state of
affairs or prospects of the Borrower or any Owner from that applying at
the date of this Agreement;
|
|
|
(v)
|
the
Borrower has entered into Designated Transactions with the Swap Bank in
order to hedge all the interest rate risk under this Agreement as at the
relevant Drawdown Date (immediately following the drawdown of the relevant
Advance); and
|
|
|
(vi)
|
the
Facility Agent receives any fees referred to in Clause 20.1 which are due
and payable at that time;
|
|
(f)
|
that,
if the ratio set out in Clause 15.1 were applied immediately following the
making of the relevant Advance, the Borrower would not be obliged to
provide additional security or prepay part of the Loan under that Clause;
and
|
|
(g)
|
that
the Facility Agent has received, and found to be acceptable to it, any
further opinions, consents, agreements and documents in connection with
the Finance Documents which the Facility Agent may, with the authorisation
of the Majority Lenders, request by notice to the Borrower prior to the
relevant Drawdown Date.
|
|
9.2
|
Waiver of conditions
precedent. If the Majority Lenders, at their discretion,
permit an Advance to be borrowed before certain of the conditions referred
to in Clause 9.1 are satisfied, the Borrower shall ensure that those
conditions are satisfied within 5 Business Days after the relevant
Drawdown Date (or such longer period as the Facility Agent may, with the
authorisation of the Majority Lenders,
specify).
|
|
10.1
|
General. The
Borrower represents and warrants to each Creditor Party as
follows.
|
|
10.2
|
Status. The
Borrower is a limited partnership (comprised of a single general partner
and multiple limited partners) formed and validly existing and in good
standing under the laws of the Republic of Xxxxxxxx
Islands.
|
|
10.3
|
Capital. The
Borrower’s capital consists of 13,512,000 common units held by public
unitholders, 8,805,522 subordinated units held by Capital Maritime &
Trading Corp. and a general partner interest held by Capital GP
L.L.C.
|
|
10.4
|
Corporate
power. The Borrower (or, in the case of paragraphs (a)
and (b), each Existing Owner) has the partnership or corporate capacity,
and has taken all partnership or corporate action and obtained all
consents necessary for it:
|
|
(a)
|
to
own and register the Existing Ship owned by it under the relevant Approved
Flag;
|
|
(b)
|
to
enter into, and perform its obligations under, the Existing Charter to
which it is a party;
|
|
(c)
|
to
execute the Finance Documents to which the Borrower is a party;
and
|
|
(d)
|
to
borrow under this Agreement, to enter into Designated Transactions under
the Master Agreement and to make all the payments contemplated by, and to
comply with, those Finance Documents to which the Borrower is a
party.
|
|
10.5
|
Consents in
force. All the consents referred to in Clause 10.4
remain in force and nothing has occurred which makes any of them liable to
revocation.
|
|
10.6
|
Legal validity; effective
Security Interests. The Finance Documents to which the
Borrower is a party, do now or, as the case may be, will, upon execution
and delivery (and, where applicable, registration as provided for in the
Finance Documents):
|
|
(a)
|
constitute
the Borrower’s legal, valid and binding obligations enforceable against
the Borrower in accordance with their respective terms;
and
|
|
(b)
|
create
legal, valid and binding Security Interests enforceable in accordance with
their respective terms over all the assets to which they, by their terms,
relate,
|
subject
to any relevant insolvency laws affecting creditors’ rights
generally.
|
10.7
|
No third party Security
Interests. Without limiting the generality of Clause
10.6, at the time of the execution and delivery of each Finance Document
to which the Borrower is a party:
|
|
(a)
|
the
Borrower will have the right to create all the Security Interests which
that Finance Document purports to create;
and
|
|
(b)
|
no
third party will have any Security Interest (except for Permitted Security
Interests) or any other interest, right or claim over, in or in relation
to any asset to which any such Security Interest, by its terms,
relates.
|
|
10.8
|
No
conflicts. The execution by the Borrower of each Finance
Document to which it is a party, and the borrowing by the Borrower of the
Loan, and its compliance with each Finance Document to which it is a party
will not involve or lead to a contravention
of:
|
|
(a)
|
any
law or regulation; or
|
|
(b)
|
the
constitutional documents of the Borrower;
or
|
|
(c)
|
any
contractual or other obligation or restriction which is binding on the
Borrower or any of its assets.
|
|
10.9
|
No withholding
taxes. All payments which the Borrower is liable to make
under the Finance Documents may be made without deduction or withholding
for or on account of any tax payable under any law of any Pertinent
Jurisdiction.
|
|
10.10
|
No
default. No Event of Default has occurred and is
continuing.
|
|
10.11
|
Information. All
information which has been provided in writing by or on behalf of the
Borrower or any Security Party to any Creditor Party in connection with
any Finance Document satisfied the requirements of Clause 11.5; all
audited and unaudited accounts which have been so provided satisfied the
requirements of Clause 11.7; and there has been no material adverse change
in the financial position or state of affairs of the Borrower from that
disclosed in the latest of those
accounts.
|
|
10.12
|
No
litigation. No legal or administrative action involving
the Borrower has been commenced or taken or, to the Borrower’s knowledge,
is likely to be commenced or taken.
|
|
10.13
|
Validity
and completeness of Existing
Charters.
|
|
(a)
|
each
Existing Charter constitutes valid, binding and enforceable obligations of
the parties thereto respectively in accordance with its terms;
and
|
|
(b)
|
no
amendments or additions to any Existing Charter have been agreed (other
than those notified to the Facility Agent prior to the date of this
Agreement) nor has any party thereto waived any of their respective rights
under any Existing Charter.
|
|
10.14
|
Compliance with certain
undertakings. At the date of this Agreement, the
Borrower is in compliance with Clauses 11.2, 11.4, 11.9
and 11.14.
|
|
10.15
|
Taxes
paid. The Borrower has paid all taxes applicable to, or
imposed on or in relation to the Borrower and its
business.
|
|
10.16
|
ISM and ISPS Code
compliance. All requirements of the ISM Code and the
ISPS Code as they relate to the Borrower, any Owner, the Approved Manager
and any Existing Ship have been complied
with.
|
|
10.17
|
No money
laundering. Without prejudice to the generality of
Clause 4.3, in relation to the borrowing by the Borrower of the Loan, the
performance and discharge of its obligations and liabilities under the
Finance Documents, and the transactions and other arrangements effected or
contemplated by the Finance Documents to which the Borrower is a party,
the Borrower confirms that it is acting for its own account and that the
foregoing will not involve or lead to contravention of any law, official
requirement or other regulatory measure or procedure implemented to combat
“money laundering” (as defined in Article 1 of the Directive (91/308/EEC)
of the Council of the European
Communities).
|
|
11.1
|
General. The
Borrower undertakes with each Creditor Party to comply with the following
provisions of this Clause 11 at all times during the Security Period
except as the Facility Agent may, with the authorisation of the Majority
Lenders, otherwise permit (which
permission shall not be unreasonably withheld in connection with Clause
11.13).
|
|
11.2
|
Title; negative pledge and pari
passu ranking. The Borrower
will:
|
|
(a)
|
hold
the legal title to, and own the entire beneficial interest in, each Owner
free from all Security Interests and other interests and rights of every
kind, except for those created by the Finance
Documents;
|
|
(b)
|
not
create or permit to arise any Security Interest over any other asset,
present or future other than in the normal course of its business of
acquiring and financing vessels;
and
|
|
(c)
|
procure
that its liabilities under the Finance Documents to which it is a party do
and will rank at least pari passu with all its other present and future
unsecured liabilities, except for liabilities which are mandatorily
preferred by law.
|
|
11.3
|
No disposal of
assets. The Borrower will not transfer, lease or
otherwise dispose of:
|
|
(a)
|
all
or a substantial part of its assets, whether by one transaction or a
number of transactions, whether related or not if such transfer, lease or
disposal results in the Borrower being in breach of any of the financial
covenants referred to in Clause 12.5 or in the occurrence of an Event of
Default; or
|
|
(b)
|
any
debt payable to it or any other right (present, future or contingent
right) to receive a payment, including any right to damages or
compensation.
|
|
11.4
|
No other liabilities or
obligations to be incurred. The Borrower will not incur
any liability or obligation except liabilities and obligations under the
Finance Documents and liabilities or obligations reasonably incurred in
the ordinary course of its business of acquiring, operating and financing
vessels, acquiring shares in vessel owning companies and financing such
acquisitions and all other matters reasonably incidental thereto (which
shall include, without limitation, but subject to Clause 12.8, any
Financial Indebtedness which may be incurred by the Borrower in the
ordinary course of its business).
|
|
11.5
|
Information provided to be
accurate. All financial and other information which is
provided in writing by or on behalf of the Borrower under or in connection
with any Finance Document will be true and not misleading and will not
omit any material fact or
consideration.
|
|
11.6
|
Provision of financial
statements. The Borrower will send or procure there are
sent to the Facility Agent:
|
|
(a)
|
as
soon as possible, but in no event later than 180 days after the end of
each financial year of the Borrower (commencing with the financial
statements for the year ending 31 December 2007), the audited consolidated
annual accounts of the Group;
|
|
(b)
|
as
soon as possible, but in no event later than 90 days after the end of each
3-month period in each financial year of the Borrower (commencing with the
financial statements for the 3-month period ending 31 March
2008):
|
|
|
(i)
|
the
unaudited consolidated management accounts of the Group for that 3-month
period certified as to their correctness by the chief financial officer of
the Borrower; and
|
|
|
(ii)
|
the
management accounts of each Owner for that 3-month period certified as to
their correctness by an officer of the
Borrower;
|
|
(c)
|
promptly
after each request by the Facility Agent, such further financial
information about the Borrower, the Ships and the Owners (including, but
not limited to, charter arrangements, Financial Indebtedness and operating
expenses) as the Facility Agent may
require.
|
|
11.7
|
Form of financial
statements. All accounts (audited and unaudited)
delivered under Clause 11.6 will:
|
|
(a)
|
be
prepared in accordance with all applicable laws and US GAAP consistently
applied;
|
|
(b)
|
give
a true and fair view of the state of affairs of the relevant person at the
date of those accounts and of its profit for the period to which those
accounts relate; and
|
|
(c)
|
fully
disclose or provide for all significant liabilities of the relevant person
and its subsidiaries.
|
|
11.8
|
Creditor
notices. The Borrower will send to the Facility Agent,
at the same time as they are despatched, copies of all communications
which are despatched to all of its creditors or to the whole or any class
of them.
|
|
11.9
|
Consents. The
Borrower will maintain in force and promptly obtain or renew, and will
promptly send certified copies to the Facility Agent of, all consents
required:
|
|
(a)
|
for
the Borrower to perform its obligations under any
Finance Document to which it is
party;
|
|
(b)
|
for
the validity or enforceability of any Finance Document to which it is
party; and
|
|
(c)
|
for
each Owner to continue to own and operate the Ship owned by
it,
|
and the
Borrower will comply (or procure compliance as the case may be) with the terms
of all such consents.
|
11.10
|
Maintenance of Security
Interests. The Borrower
will:
|
|
(a)
|
at
its own cost, do all that it reasonably can to ensure that any Finance
Document validly creates the obligations and the Security Interests which
it purports to create; and
|
|
(b)
|
without
limiting the generality of paragraph (a) above, at its own cost, promptly
register, file, record or enrol any Finance Document with any court or
authority in all Pertinent Jurisdictions, pay any stamp, registration or
similar tax in all Pertinent Jurisdictions in respect of any Finance
Document, give any notice or take any other step which, in the opinion
of the Majority Lenders, is or has become necessary or desirable for any
Finance Document to be valid, enforceable or admissible in evidence or to
ensure or protect the priority of any Security Interest which it
creates.
|
|
11.11
|
Notification of
litigation. The Borrower will provide the Facility Agent
with details of any legal or administrative action involving the Borrower,
any Security Party, the Approved Manager or the Ships, their Earnings or
their Insurances as soon as such action is instituted, unless it is clear
that the legal or administrative action cannot be considered material in
the context of any Finance
Document.
|
|
11.12
|
No amendment to Master
Agreement; Transactions. The Borrower will
not:
|
|
(a)
|
agree
to any amendment or supplement to, or waive or fail to enforce, the Master
Agreement or any of its provisions;
or
|
|
(b)
|
enter
into any Transaction pursuant to the Master Agreement except Designated
Transactions.
|
|
11.13
|
No amendment to the Existing
Charters and of the Charterparty. The Borrower will
ensure that no Owner shall agree to any material amendment or supplement
to, or waive or fail to enforce, any Existing Charter or any Charterparty
or any of its provisions.
|
|
11.14
|
Principal place of
business. The Borrower will maintain its place of
business, and keep its corporate documents and records, at the address
stated at Clause 28.2(a) and the Borrower will not establish nor do
anything as a result of which it would be deemed to have, a place of
business in England or the United States of
America.
|
|
11.15
|
Confirmation of no
default. The Borrower will, within 2 Business Days after
service by the Facility Agent of a written request, serve on the Facility
Agent a notice which is signed by 2 directors of the Borrower and
which:
|
|
(a)
|
states
that no Event of Default has occurred;
or
|
|
(b)
|
states
that no Event of Default has occurred, except for a specified event or
matter, of which all material details are
given,
|
|
the
Facility Agent may serve requests under this Clause 11.15 from time to
time; this Clause 11.15 does not affect the Borrower’s
obligations under Clause 11.16.
|
|
11.16
|
Notification of
default. The Borrower will notify the Facility Agent as
soon as the Borrower becomes aware
of:
|
|
(a)
|
the
occurrence of an Event of Default;
or
|
|
(b)
|
any
matter which indicates that an Event of Default may have
occurred,
|
and will
thereafter keep the Facility Agent fully up-to-date with all
developments.
|
11.17
|
Provision of further
information. The Borrower will, as soon as practicable
after receiving the request, provide the Facility Agent with any
additional financial or other information
relating:
|
|
(a)
|
to
the Borrower, the Ships, their Insurances, their Earnings or the Owners;
or
|
|
(b)
|
to
any other matter relevant to, or to any provision of, a Finance
Document,
|
which may
be requested by the Facility Agent, the Security Trustee or any Lender at any
time.
|
11.18
|
General and administrative
costs. The Borrower shall ensure that the payment of all
the general and administrative costs of the Borrower and the Owners in
connection with the ownership and operation of the Ships (including,
without limitation, the payment of the management fees pursuant to the
Management Agreements) shall be fully subordinated to the payment
obligations of the Borrower and the Owners under this Agreement and the
other Finance Documents throughout the Security
Period.
|
|
11.19
|
Provision of copies of SEC
filings. The Borrower will send to the Facility Agent
copies of all filings made with, and reports submitted to, the US
Securities and Exchange Commission promptly after making such filings or
submitting such reports Provided that any such
filings or reports which are made available to the public shall be
considered to have been delivered to the Facility Agent subject to the
Borrower first having notified the Facility Agent that such filings or
reports have been made or
submitted.
|
|
11.20
|
Provision of copies and
translation of documents. The Borrower will supply the
Facility Agent with a sufficient number of copies of the documents
referred to above to provide 1 copy for each Creditor Party; and if the
Facility Agent so requires in respect of any of those documents, the
Borrower will provide a certified English translation prepared by a
translator approved by the Facility
Agent.
|
|
11.21
|
Hedging of interest rate
risks. The Borrower shall from time to time enter into
Designated Transactions with the Swap Bank in order to hedge all the
interest rate risk under this
Agreement.
|
|
12.1
|
General. The
Borrower also undertakes with each Creditor Party to comply with the
following provisions of this Clause 12 at all times during the Security
Period except as the Facility Agent may, with the authorisation of the
Majority Lenders, otherwise permit (such permission not to be unreasonably
withheld in the case of Clause
12.3(d)).
|
|
12.2
|
Maintenance of
status. The Borrower will maintain its separate
existence as a limited partnership and remain in good standing under the
laws of the Republic of the Xxxxxxxx
Islands.
|
|
12.3
|
Negative
undertakings. The Borrower will
not:
|
|
(a)
|
change
the nature of its business; or
|
|
(b)
|
pay
any dividend or make any other form of distribution or effect any form of
redemption, purchase or return of share capital Provided that the
Borrower may make a distribution
if:
|
|
|
(i)
|
the
Borrower has first submitted to the Facility Agent a Compliance
Certificate (with supporting evidence satisfactory to the Facility Agent)
which confirms that (A) no Event of Default has occurred or is continuing
and (B) the making of such distribution will not result in the Borrower
being in breach of any of the financial covenants referred to in Clause
12.5 or in the occurrence of an Event of Default;
and
|
|
|
(ii)
|
the
Facility Agent is satisfied that the Security Cover Ratio referred to in
Clause 15.1 is maintained at the time the distribution is
made;
|
|
(c)
|
provide
any form of credit or financial assistance
to:
|
|
|
(i)
|
a
person who is directly or indirectly interested in the Borrower’s share or
loan capital; or
|
|
|
(ii)
|
any
company in or with which such a person is directly or indirectly
interested or connected,
|
|
or
enter into any transaction with or involving such a person or company on
terms which are, in any respect, less favourable to the Borrower than
those which it could obtain in a bargain made at arms’
length Provided that this shall
not prevent or restrict the Borrower from on-lending the Loan to the
Owners;
|
|
(d)
|
allow
any Owner to open or maintain any account with any bank or financial
institution except accounts with the Facility Agent or any other Creditor
Party for the purposes of the Finance Documents Provided that until the
completion of the syndication process (as referred to in Clause 12.8) an
Owner may continue to maintain any other accounts already opened with
other banks for the purposes of previous
financings;
|
|
(e)
|
cause
the common units of the Borrower to cease to be listed on the Nasdaq
National Market in New York unless the common units of the Borrower are
listed instead on any other internationally recognised stock exchange
acceptable to the Lenders, such acceptance not to be unreasonably
withheld.
|
|
12.4
|
Subordination of rights of
Borrower. All rights which the Borrower at any time has against any
Owner or its assets shall be fully subordinated to the rights of the
Creditor Parties under the Finance Documents; and in
particular, the Borrower shall not during the Security
Period:
|
|
(a)
|
claim,
or in a bankruptcy of any Owner prove for, any amount payable to the
Borrower by any Owner, whether in respect of the on-lending of the Loan or
any other transaction;
|
|
(b)
|
take
or enforce any Security Interest for any such amount;
or
|
|
(c)
|
claim
to set-off any such amount against any amount payable by the Borrower to
any Owner.
|
|
12.5
|
Financial
Covenants. The Borrower shall ensure that at all
times:
|
|
(a)
|
the
ratio of Total Indebtedness less unencumbered cash and cash equivalents to
the aggregate Market Value of all the Fleet Vessels shall not exceed
0.725:1;
|
|
(b)
|
the
ratio of EBITDA to Net Interest Expenses (calculated on a trailing
4-quarter basis (or such other period as the Facility Agent (acting upon
the instructions of the Majority Lenders) may otherwise reasonably
require)) shall be no less than 2:1;
and
|
|
(c)
|
at
all times the Borrower and all the other members of the Group shall
maintain immediately freely available and unencumbered bank or cash
deposits in an aggregate amount of not less than the product of $500,000
and the number of Ships which are subject to a Mortgage at the relevant
time, 50 per cent. of such liquidity may be constituted by undrawn
Commitments under the Revolving
Facility.
|
|
12.6
|
Compliance
Check. Compliance with the undertakings contained in
Clause 12.5 shall be determined by reference to the unaudited consolidated
accounts for the first 3 financial quarters in each Financial Year of the
Borrower and for the fourth financial quarter in each Financial Year of
the Borrower, the audited consolidated accounts for that Financial Year of
the Group delivered to the Facility Agent pursuant to this
Agreement. At the same
time as it delivers those consolidated accounts, the Borrower shall
deliver to the Facility Agent a Compliance Certificate signed by the chief
financial officer of the
Borrower.
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|
12.7
|
Maintenance of ownership of
Owners. The Borrower shall remain the ultimate legal
owner of the entire issued and allotted share capital of each Owner which
at the relevant time is party to a Guarantee free from any Security
Interest.
|
|
12.8
|
Free Syndication
market. The Borrower shall not, and shall ensure that no
Owner and no member of the Group shall, until the earlier of 30 August
2008 and the date on which the Facility Agent declares that the primary
syndication of the Loan has closed:
|
|
(a)
|
syndicate
or issue or attempt to syndicate or issue;
or
|
|
(b)
|
announce
or authorise the announcement of the syndication or issuance of;
or
|
|
(c)
|
engage
in discussions concerning the syndication or issuance
of,
|
any
Financial Indebtedness with any banks or financial institutions in the
commercial banking market Provided that this shall not
restrict the Borrower from incurring any further Financial Indebtedness to banks
or financial institutions (other than the Lenders) subject to the Facility Agent
having been given the opportunity to match the terms and conditions of any
financing offered to the Borrower.
|
13
|
|
13.1
|
General. The
Borrower undertakes with each Creditor Party to procure that each Owner
will comply with the following provisions of this Clause 13 at all times
during the Security Period (after the Ship which is owned or to be owned
by that Owner has been delivered to it under the relevant Shipbuilding
Contract) except as the Facility Agent may, with the authorisation of the
Majority Lenders, otherwise permit (which permission has been given to
each Owner whose Ship is subject to a bareboat charter with BP and such
permission shall be deemed to be given to each Owner whose Ship may from
time to time be subject to a bareboat charter with
BP).
|
|
13.2
|
Maintenance of obligatory
insurances. The Borrower shall procure that each Owner
will keep the Ship owned by it insured at the expense of that Owner
against:
|
|
(a)
|
fire
and usual marine risks (including hull and machinery and excess risks);
and
|
|
(b)
|
war
risks; and
|
|
(c)
|
protection
and indemnity risks in excess of the limit of cover for oil pollution
liability risks included within the protection and indemnity risks;
and
|
|
(d)
|
any
other risks against which the Majority Lenders consider, having regard to
practices and other circumstances prevailing at the relevant time, it
would in the opinion of the Majority Lenders be reasonable for that Owner
to insure and which are specified by the Security Trustee by notice to
that Owner.
|
|
13.3
|
Terms of obligatory
insurances. The Borrower shall procure that each Owner
will effect such insurances:
|
|
(a)
|
in
Dollars;
|
|
(b)
|
in
the case of fire and usual marine risks and war risks, in such amounts as
shall from time to time be approved by the Facility Agent but in any event
in an amount not less than
the greater of (i) the Market Value of the Ship owned by that Owner for
the time being and (ii) such amount, which when aggregated with the amount
for which any other Ship then subject to a Mortgage is insured, is equal
to 120 per cent. of the Loan;
and
|
|
(c)
|
in
the case of oil pollution liability risks, for an aggregate amount equal
to the highest level of cover from time to time available under basic
protection and indemnity club entry (with the international group of
protection and indemnity clubs) and the international marine insurance
market (currently $1,000,000,000);
|
|
(d)
|
in
relation to protection and indemnity risks in respect of the full value
and tonnage of the Ship owned by that
Owner;
|
|
(e)
|
on
such terms as shall from time to time be approved in writing by the
Facility Agent (including, without limitation, a blocking and trapping
clause); and
|
|
(f)
|
through
approved brokers and with approved insurance companies and/or underwriters
or, in the case of war risks and protection and indemnity risks, in
approved war risks and protection and indemnity risks
associations.
|
|
13.4
|
Further protections for the
Creditor Parties. In addition to the terms set out in
Clause 13.3, the Borrower shall procure that the obligatory insurances
shall:
|
|
(a)
|
(except
in relation to risks referred to in Clause 13.2(c)) name (or be amended to
name) the Security Trustee as additional named assured for its rights and
interests, warranted no operational interest and with full waiver of
rights of subrogation against the Security Trustee, but without the
Security Trustee thereby being liable to pay (but having the right to pay)
premiums, calls or other assessments in respect of such insurance and
shall not name any other additional assured without the prior written
consent of the Security Trustee, such consent not to be unreasonably
withheld and excluding the Approved Manager and any bareboat
charterer;
|
|
(b)
|
name
the Security Trustee as sole loss payee with such directions for payment
as the Security Trustee may
specify;
|
|
(c)
|
provide
that all payments by or on behalf of the insurers under the obligatory
insurances to the Security Trustee shall be made without set-off,
counterclaim or deductions or condition
whatsoever;
|
|
(d)
|
provide
that the insurers shall waive, to the fullest extent permitted by English
law, their entitlement (if any) (whether by statute, common law, equity,
or otherwise) to be subrogated to the rights and remedies of the Security
Trustee in respect of any rights or interests (secured or not) held by or
available to the Security Trustee in respect of the Secured Liabilities,
until the Secured Liabilities shall have been fully repaid and discharged,
except that the insurers shall not be restricted by the terms of this
paragraph (d) from making personal claims against persons (other than the
Owners or any Creditor Party) in circumstances where the insurers have
fully discharged their liabilities and obligations under the relevant
obligatory insurances;
|
|
(e)
|
provide
that such obligatory insurances shall be primary without right of
contribution from other insurances which may be carried by the Security
Trustee;
|
|
(f)
|
provide
that the Security Trustee may make proof of loss if the Owners fail to do
so; and
|
|
(g)
|
provide
that if any obligatory insurance is cancelled, or if any substantial
change is made in the coverage which adversely affects the interest of the
Security Trustee, or if any obligatory insurance is allowed to lapse for
non-payment of premium, such cancellation, charge or lapse shall not be
effective with respect to the Security Trustee for 30 days (or 7 days
in the case of war risks) after receipt by the Security Trustee of prior
written notice from the insurers of such cancellation, change or
lapse.
|
|
13.5
|
Renewal of obligatory
insurances. The Borrower shall procure that each Owner
shall:
|
|
(a)
|
at
least 21 days before the expiry of any obligatory
insurance:
|
|
|
(i)
|
notify
the Security Trustee of the brokers (or other insurers) and any protection
and indemnity or war risks association through or with whom that Owner
proposes to renew that insurance and of the proposed terms of renewal;
and
|
|
|
(ii)
|
in
case of any substantial change in insurance cover, obtain the Majority
Lenders’ approval to the matters referred to in paragraph (i)
above;
|
|
(b)
|
at
least 14 days before the expiry of any obligatory insurance, renew the
insurance; and
|
|
(c)
|
procure
that the approved brokers and/or the war risks and protection and
indemnity associations with which such a renewal is effected shall
promptly after the renewal notify the Security Trustee in writing of the
terms and conditions of the
renewal.
|
|
13.6
|
Copies of policies; letters of
undertaking. The Borrower shall procure that each Owner
shall ensure that all approved brokers provide the Security Trustee with
copies of all policies relating to the obligatory insurances which they
effect or renew and of a letter or letters of undertaking in a form
required by the Majority Lenders and including undertakings by the
approved brokers that:
|
|
(a)
|
they
will have endorsed on each policy, immediately upon issue, a loss payable
clause and a notice of assignment complying with the provisions of Clause
13.4;
|
|
(b)
|
they
will hold such policies, and the benefit of such insurances, to the order
of the Security Trustee in accordance with the said loss payable
clause;
|
|
(c)
|
they
will advise the Security Trustee immediately of any material change to the
terms of the obligatory insurances;
|
|
(d)
|
they
will notify the Security Trustee, not less than 14 days before the expiry
of the obligatory insurances, in the event of their not having received
notice of renewal instructions from that Owner or its agents and, in the
event of their receiving instructions to renew, they will promptly notify
the Security Trustee of the terms of the instructions;
and
|
|
(e)
|
they
will not set off against any sum recoverable in respect of a claim
relating to the Ship owned by that Owner under such obligatory insurances
any premiums or other amounts due to them or any other person whether in
respect of that Ship or otherwise, they waive any lien on the policies or,
any sums received under them, which they might have in respect of such
premiums or other amounts, and they will not cancel such obligatory
insurances by reason of non-payment of such premiums or other amounts, and
will arrange for a separate policy to be issued in respect of that Ship
forthwith upon being so requested by the Security
Trustee.
|
|
13.7
|
Copies of certificates of
entry. The Borrower shall procure that each Owner shall
ensure that any protection and indemnity and/or war risks associations in
which the Ship owned by that Owner is entered provides the Security
Trustee with:
|
|
(a)
|
a
certified copy of the certificate of entry for that Ship;
and
|
|
(b)
|
a
letter or letters of undertaking in such form as may be required by the
Majority Lenders; and
|
|
(c)
|
where
required to be issued under the terms of insurance/indemnity provided by
that Owner’s protection and indemnity association, a certified copy of
each United States of America voyage quarterly declaration (or other
similar document or documents) made by that Owner in relation to its Ship
in accordance with the requirements of such protection and indemnity
association; and
|
|
(d)
|
a
certified copy of each certificate of financial responsibility for
pollution by oil or other Environmentally Sensitive Material issued by the
relevant certifying authority in relation to that
Ship.
|
|
13.8
|
Deposit of original
policies. The Borrower shall procure that each Owner
shall ensure that all policies relating to obligatory insurances are
deposited with the approved brokers through which the insurances are
effected or renewed.
|
|
13.9
|
Payment of
premiums. The Borrower shall procure that each Owner
shall punctually pay all premiums or other sums payable in respect of the
obligatory insurances and produce all relevant receipts when so required
by the Security Trustee.
|
|
13.10
|
Guarantees. The
Borrower shall procure that each Owner shall ensure that any guarantees
required by a protection and indemnity or war risks association are
promptly issued and remain in full force and
effect.
|
|
13.11
|
Restrictions on
employment. The Borrower shall procure that no Owner
shall employ the Ship owned by it, nor shall permit her to be employed,
outside the cover provided by any obligatory
insurances.
|
|
13.12
|
Compliance with terms of
insurances. The Borrower shall procure that no Owner
shall do or omit to do (or permits to be done or not to be done) any act
or thing which would or might render any obligatory insurance invalid,
void, voidable or unenforceable or render any sum payable thereunder
repayable in whole or in part; and in
particular:
|
|
(a)
|
the
Borrower shall procure that each Owner shall take all necessary action and
comply with all requirements which may from time to time be applicable to
the obligatory insurances, and (without limiting the obligation contained
in Clause 13.7(c) above) ensure that the obligatory insurances are not
made subject to any exclusions or qualifications to which the Security
Trustee has not given its prior
approval;
|
|
(b)
|
the
Borrower shall procure that no Owner shall make any changes relating to
the classification or classification society or manager or operator of the
Ship owned by it approved by the underwriters of the obligatory
insurances;
|
|
(c)
|
the
Borrower shall procure that each Owner shall make all quarterly or other
voyage declarations which may be required by the protection and indemnity
risks association in which the Ship owned by it is entered to maintain
cover for trading to the United States of America and Exclusive Economic
Zone (as defined in the United States Oil Pollution Act 1990 or any other
applicable legislation); and
|
|
(d)
|
the
Borrower shall procure that no Owner shall employ the Ship owned by it,
nor shall allow it to be employed, otherwise than in conformity with the
terms and conditions of the obligatory insurances, without first obtaining
the consent of the insurers and complying with any requirements (as to
extra premium or otherwise) which the insurers
specify.
|
|
13.13
|
Alteration to terms of
insurances. The Borrower shall procure that no Owner
shall either make or agree to any alteration to the terms of any
obligatory insurance or waive any right relating to any obligatory
insurance without the prior written consent of the Security
Trustee.
|
|
13.14
|
Settlement of
claims. The Borrower shall procure that no Owner shall
settle, compromise or abandon any claim under any obligatory insurance for
Total Loss or for a Major Casualty, and shall procure that the relevant
Owner shall do all things necessary and provide all documents, evidence
and information to enable the Security Trustee to collect or recover any
moneys which at any time become payable in respect of the obligatory
insurances.
|
|
13.15
|
Provision of copies of
communications. The Borrower shall procure that each
Owner shall provide the Security Trustee, at the time of each such
communication, copies of all written communications between that Owner
and:
|
|
(a)
|
the
approved brokers; and
|
|
(b)
|
the
approved protection and indemnity and/or war risks associations;
and
|
|
(c)
|
the
approved insurance companies and/or underwriters, which relate directly or
indirectly to:
|
|
|
(i)
|
that
Owner’s obligations relating to the obligatory insurances including,
without limitation, all requisite declarations and payments of additional
premiums or calls; and
|
|
|
(ii)
|
any
credit arrangements made between that Owner and any of the persons
referred to in paragraphs (a) or (b) above relating wholly or partly to
the effecting or maintenance of the obligatory
insurances.
|
|
13.16
|
Provision of
information. In addition, the Borrower shall procure
that each Owner shall promptly provide the Security Trustee (or any
persons which it may designate) with any information which the Security
Trustee (or any such designated person) requests for the purpose
of:
|
|
(a)
|
obtaining
or preparing any report from an independent marine insurance broker as to
the adequacy of the obligatory insurances effected or proposed to be
effected; and/or
|
|
(b)
|
effecting,
maintaining or renewing any such insurances as are referred to in Clause
13.17 below or dealing with or considering any matters relating to any
such insurances, and
the Borrower shall procure that each Owner shall, forthwith upon demand,
indemnify the Security Trustee in respect of all reasonable fees and other
expenses incurred by or for the account of the Security Trustee in
connection with any such report as is referred to in paragraph (a)
above.
|
|
13.17
|
Mortgagee’s interest,
additional perils. The Security Trustee shall be
entitled from time to time to effect, maintain and renew all or any of the
following insurances in an amount equal to 120 per cent. of the Loan in
the case of the mortgagee’s interest marine insurance referred to in
paragraph (a) below and in an amount equal to 110 per cent. of the Loan in
the case of the mortgagee’s interest additional perils policy referred to
in paragraph (b) below, on such terms, through such insurers and generally
in such manner as the Majority Lenders may from time to time consider
appropriate:
|
|
(a)
|
a
mortgagee’s interest marine insurance in relation to each Ship in such
amount as the Security Trustee may consider appropriate, providing for the
indemnification of the Security
Trustee for any losses under or in connection with any Finance Document
which directly or indirectly result from loss of or damage to any Ship or
a liability of any Ship or of any Owner, being a loss or damage which is
prima facie covered by an obligatory insurance but in respect of which
there is a non-payment (or reduced payment) by the underwriters by reason
of, or on the basis of an allegation
concerning:
|
|
|
(i)
|
any
act or omission on the part of an Owner, of any operator, charterer,
manager or sub-manager of the Ship owned by it or of any officer, employee
or agent of that Owner or of any such person, including any breach of
warranty or condition or any non-disclosure relating to such obligatory
insurance;
|
|
|
(ii)
|
any
act or omission, whether deliberate, negligent or accidental, or any
knowledge or privity of an Owner, any other person referred to in
paragraph (i) above, or of any officer, employee or agent of that Owner or
of such a person, including the casting away or damaging of the Ship owned
by it and/or the Ship owned by it being unseaworthy;
and/or
|
|
|
(iii)
|
any
other matter capable of being insured against under a mortgagee’s interest
marine insurance policy whether or not similar to the
foregoing;
|
|
(b)
|
a
mortgagee’s interest additional perils policy in relation to each Ship in
such amount as the Security Trustee may consider appropriate, providing
for the indemnification of the Security Trustee against, among other
things, any possible losses or other consequences of any Environmental
Claim, including the risk of expropriation, arrest or any form of
detention of a Ship, the imposition of any Security Interest over a Ship
and/or any other matter capable of being insured against under a
mortgagee’s interest additional perils policy whether or not similar to
the foregoing,
|
|
and
the Borrower shall upon demand fully indemnify the Security Trustee in
respect of all premiums and other expenses which are incurred in
connection with or with a view to effecting, maintaining or renewing any
such insurance or dealing with, or considering, any matter arising out of
any such insurance.
|
|
13.18
|
Review of insurance
requirements. The Majority Lenders shall be entitled to
review the requirements of this Clause 13 from time to time in order to
take account of any changes in circumstances after the date of this
Agreement which are, in the opinion of the Majority Lenders, significant
and capable of affecting the Borrower or any Ship and its or their
insurance (including, without limitation, changes in the availability or
the cost of insurance coverage or the risks to which the Owners may be
subject), and may appoint insurance consultants in relation to this review
at the cost of the Borrower.
|
|
13.19
|
Modification of insurance
requirements. The Security Trustee shall notify the
Borrower of any proposed modification under Clause 13.18 to the
requirements of this Clause 13 which the Majority Lenders reasonably
consider appropriate in the circumstances, and such modification shall
take effect on and from the date it is notified in writing to the Borrower
as an amendment to this Clause 13 and shall bind the Borrower
accordingly.
|
|
13.20
|
Compliance with mortgagee’s
instructions. The Security Trustee shall be entitled
(without prejudice to or limitation of any other rights which it may have
or acquire under any Finance Document) to require a Ship to remain at any
safe port or to proceed to and remain at any safe port designated by the
Security Trustee until the relevant Owner implements any amendments to the
terms of the obligatory insurances and any operational changes required as
a result of a notice served under Clause
13.19.
|
|
14.1
|
General. The
Borrower also undertakes with each Creditor Party to procure that each
Owner complies with the following provisions of this Clause 14 at all
times during the Security Period (after the Ship has been delivered to it
under the Shipbuilding Contract) except as the Facility Agent, with the
authorisation of the Majority Lenders, may otherwise permit (in the case
of the Clauses 14.2, 14.3(b) and 14.13(e), such permission not to be
unreasonably withheld).
|
|
14.2
|
Ship’s name and
registration. The Borrower shall procure that each Owner
shall keep the Ship owned by it registered in its name under the relevant
Approved Flag; shall not do or allow to be done anything as a result of
which such registration might be cancelled or imperilled; and shall not
change the name or port of registry of that
Ship.
|
|
14.3
|
Repair and
classification. The Borrower shall procure that each
Owner shall keep the Ship owned by it in a good and safe condition and
state of repair:
|
|
(a)
|
consistent
with first-class ship ownership and management
practice;
|
|
(b)
|
so
as to maintain the highest class with an Approved Classification Society
acceptable to the Majority Lenders free of overdue recommendations and
conditions and, upon the Security Trustee’s request, the Approved
Classification Society shall provide the Security Trustee with any
information and documentation required in respect of the Ship as the same
is maintained in the records of the Approved Classification Society;
and
|
|
(c)
|
so
as to comply with all laws and regulations applicable to vessels
registered at ports in the relevant Approved Flag State or to vessels
trading to any jurisdiction to which that Ship may trade from time to
time, including but not limited to the ISM Code, the ISM Code
Documentation and the ISPS Code.
|
|
14.4
|
Modification. The
Borrower shall procure that no Owner shall make any modification or
repairs to, or replacement of, any Ship or equipment installed on her
which would or might materially alter the structure, type or performance
characteristics of that Ship or materially reduce her
value.
|
|
14.5
|
Removal of
parts. The Borrower shall procure that no Owner shall
remove any material part of any Ship, or any item of equipment installed
on, any Ship unless the part or item so removed is forthwith replaced by a
suitable part or item which is in the same condition as or better
condition than the part or item removed, is free from any Security
Interest or any right in favour of any person other than the Security
Trustee and becomes on installation on the relevant Ship the property of
the relevant Owner and subject to the security constituted by the Mortgage
and the Deed of Covenant Provided that an Owner
may install equipment owned by a third party if the equipment can be
removed without any risk of damage to the Ship owned by
it.
|
|
14.6
|
Surveys. The
Borrower shall procure that each Owner shall submit the Ship owned by it
regularly to all periodical or other surveys which may be required for
classification purposes and, if so required by the Majority Lenders
provide the Security Trustee, with copies of all survey
reports.
|
|
14.7
|
Technical
Survey. Without prejudice to the Owners’ obligations
pursuant to Clause 14.6, if the survey report to be delivered as a
condition to the drawdown of the Advance which shall be used to (inter
alia) finance or refinance a Ship (as referred to in the applicable
paragraph of Schedule 3) is not satisfactory to the Facility Agent (acting
reasonably), the Borrower shall procure that the relevant Owner shall
promptly following the request of the Facility Agent (to be made within 6
months of the Drawdown Date relative to the Advance which was used (inter
alia) to finance or refinance such Ship) submit
the Ship owned by it for a technical survey by an independent surveyor or
surveyors appointed by the Facility Agent. All fees and expenses incurred
in relation to the appointment of the surveyor or surveyors and the
preparation and issue of all technical reports pursuant to this Clause
14.7 shall be for the account of the
Borrower.
|
|
14.8
|
Inspection. The
Borrower shall procure that each Owner shall permit the Security Trustee
(by surveyors or other persons appointed by it for that purpose) to board
the Ship owned by it at all reasonable times to inspect her condition or
to satisfy themselves about proposed or executed repairs and shall afford
all proper facilities for such inspections Provided
that so long as a Ship is found to be in a satisfactory
condition to the Facility Agent (acting reasonably) and no continuing
Event of Default or Potential Event of Default shall be in existence, the
Borrower or the relevant Owner, as the case may be, shall not be obliged
to pay the fees and expenses incurred in connection with the inspection of
the relevant Ship more than once in any twelve-month
period.
|
|
14.9
|
Prevention of and release from
arrest. The Borrower shall procure that each Owner shall
promptly discharge:
|
|
(a)
|
all
liabilities which give or may give rise to maritime or possessory liens on
or claims enforceable against the Ship owned by it, the Earnings or the
Insurances;
|
|
(b)
|
all
taxes, dues and other amounts charged in respect of the Ship owned by it,
the Earnings or the Insurances; and
|
|
(c)
|
all
other outgoings whatsoever in respect of the Ship owned by it, the
Earnings or the Insurances,
|
|
and,
forthwith upon receiving notice of the arrest of the Ship owned by it, or
of her detention in exercise or purported exercise of any lien or claim,
the Borrower shall procure her release by providing bail or otherwise as
the circumstances may require.
|
|
14.10
|
Compliance with laws
etc. The Borrower shall procure that each Owner
shall:
|
|
(a)
|
comply,
or procure compliance with the ISM Code, all Environmental Laws, the ISPS
Code and all other laws or regulations relating to the Ship owned by it,
its ownership, operation and management or to the business of that
Owner;
|
|
(b)
|
not
employ the Ship owned by it nor allow her employment in any manner
contrary to any law or regulation in any relevant jurisdiction including,
but not limited, to the ISM Code and the ISPS Code;
and
|
|
(c)
|
in
the event of hostilities in any part of the world (whether war is declared
or not), not cause or permit the Ship owned by it to enter or trade to any
zone which is declared a war zone by any government or by the Ship’s war
risks insurers unless the prior written consent of the Majority Lenders
has been given and that Owner has (at its expense) effected any special,
additional or modified insurance cover which the Majority Lenders may
require.
|
|
14.11
|
Provision of
information. The Borrower shall procure that each Owner
shall promptly provide the Security Trustee with any information which the
Majority Lenders request regarding:
|
|
(a)
|
the
Ship owned by it, her employment, position and
engagements;
|
|
(b)
|
the
Earnings and payments and amounts due to the master and crew of the Ship
owned by it;
|
|
(c)
|
any
expenses incurred, or likely to be incurred, in connection with the
operation, maintenance or repair of the Ship owned by it and any payments
made in respect of that Ship;
|
|
(d)
|
any
towages and salvages; and
|
|
(e)
|
its
compliance or the compliance of the Ship owned by it with the ISM Code and
the ISPS Code, and,
upon the Security Trustee’s request, provide copies of any current charter
relating to the Ship owned by it and of any current charter guarantee, and
copies of the ISM Code Documentation and the
ISCC.
|
|
14.12
|
Notification of certain
events. The Borrower shall procure that each Owner shall
immediately notify the Security Trustee by letter
of:
|
|
(a)
|
any
casualty which is or is likely to be or to become a Major
Casualty;
|
|
(b)
|
any
occurrence as a result of which the Ship owned by it has become or is, by
the passing of time or otherwise, likely to become a Total
Loss;
|
|
(c)
|
any
requirement or recommendation made by any insurer or classification
society or by any competent authority which is not immediately complied
with;
|
|
(d)
|
any
arrest or detention of the Ship owned by it, any exercise or purported
exercise of any lien on that Ship or her Earnings or any requisition of
that Ship for hire,
|
|
(e)
|
any
intended dry docking of the Ship owned by it where the cost of the dry
docking will, or is likely to, exceed $500,000 (or the equivalent in any
other currency) in aggregate;
|
|
(f)
|
any
Environmental Claim made against that Owner or in connection with the Ship
owned by it, or any Environmental
Incident;
|
|
(g)
|
any
claim for breach of the ISM Code or the ISPS Code being made against that
Owner, the Approved Manager or otherwise in connection with the Ship owned
by it; or
|
|
(h)
|
any
other matter, event or incident, actual or threatened, the effect of which
will or could lead to the ISM Code or the ISPS Code not being complied
with,
|
|
and
that Owner shall keep the Security Trustee advised in writing on a regular
basis and in such detail as the Security Trustee shall require of that
Owner’s, the Approved Manager’s or any other person’s response to any of
those events or matters.
|
|
14.13
|
Restrictions on, appointment of
managers etc. The Borrower shall procure that
no Owner shall:
|
|
(a)
|
enter
into any time charter in relation to the Ship owned by it under which more
than 2 months’ hire (or the equivalent) is payable in
advance;
|
|
(b)
|
charter
the Ship owned by it otherwise than on bona fide arm’s length terms at the
time when the Ship is fixed;
|
|
(c)
|
appoint
a manager of the Ship owned by it other than the Approved
Manager;
|
|
(d)
|
de-activate
or lay up the Ship owned by it; or
|
|
(e)
|
put
the Ship owned by it into the possession of any person for the purpose of
work being done upon her in an amount exceeding or likely to exceed
$750,000 (or the equivalent in any other currency) unless that person has
first given to the Security Trustee and in terms satisfactory to it a
written undertaking not to exercise any lien on that Ship or her Earnings
for the cost of such work or
otherwise.
|
|
14.14
|
Notice of
Mortgage. The Borrower shall procure that each Owner
shall keep the Mortgage registered against the Ship owned by it as a valid
first priority or, as the case may be, preferred mortgage, carry on board
that Ship a certified copy of the relevant Mortgage and place and maintain
in a conspicuous place in the navigation room and the Master’s cabin of
that Ship a framed printed notice stating that that Ship is mortgaged by
that Owner to the Security Trustee.
|
|
14.15
|
Sharing of
Earnings. The Borrower shall procure that no Owner
shall:
|
|
(a)
|
enter
into any agreement or arrangement for the sharing of any
Earnings;
|
|
(b)
|
enter
into any agreement or arrangement for the postponement of any date on
which any Earnings are due; the reduction of the amount of any Earnings or
otherwise for the release or adverse alteration of any right of that Owner
to any Earnings; or
|
|
(c)
|
enter
into any agreement or arrangement for the release of, or adverse
alteration to, any guarantee or Security Interest relating to any
Earnings.
|
|
14.16
|
Time Charter
Assignment. If any Owner enters into any Charterparty or
a bareboat charter in respect of its Ship, the Borrower shall procure that
the relevant Owner shall, at the request of the Facility Agent, execute in
favour of the Security Trustee a Charterparty Assignment or, in the case
of a bareboat charter, a Bareboat Charter Security Agreement, and shall
deliver to the Facility Agent such other documents equivalent to those
referred to at paragraphs 3, 4 and 5 of Part A of Schedule 3 hereof as the
Facility Agent may require.
|
|
14.17
|
Bareboat
Charters. Any Owner may enter into a bareboat
charter in respect of its Ship subject to the following
conditions:
|
|
(a)
|
such
bareboat charter shall be with one of the charterers which is a party to
an Existing Charter or an affiliate or subsidiary of such charterer or any
other company which in the reasonable opinion of the Majority Lenders is
equivalent to any such charterer or any other company which may be
approved by the Majority Lenders (acting reasonably)
and
|
|
(b)
|
each
such bareboat charterer shall enter into and execute a Bareboat Charter
Security Agreement except in circumstances where the Majority Lenders
(acting reasonably) may agree
otherwise.
|
|
15.1
|
Provision of additional
security cover; prepayment of Loan. The Borrower
undertakes with each Creditor Party that, if the Facility Agent notifies
the Borrower that at any time after the Drawdown Date of the first Advance
to be drawn under this Agreement the aggregate Market Value of the Ships
subject to a Mortgage is below 125 per cent. of the Loan, the Borrower
will, within 1 month after the date on which the Facility Agent’s notice
is served, either:
|
|
(a)
|
provide,
or ensure that a third party provides, additional security which, in the
opinion of the Majority Lenders, has a net realisable value at least equal
to the shortfall and which consists of either (i) cash pledged to the
Security Trustee or (ii) a Security Interest (including, but not limited
to, a first priority or, as the case may be, preferred mortgage over
another vessel), covering such asset or assets and documented in such
terms as the Facility Agent may, with authorisation from the Majority
Lenders, approve or require;
or
|
|
(b)
|
prepay
in accordance with Clause 8 such part (at least) of the Loan as will
eliminate the shortfall.
|
|
15.2
|
Meaning of additional
security. In Clause 15.1 “security” means a
Security Interest over an asset or assets (whether securing the Borrower’s
liabilities under the Finance Documents or a guarantee in respect of those
liabilities), or a guarantee, letter of credit or other security in
respect of the Borrower’s liabilities under the Finance
Documents.
|
|
15.3
|
Requirement for additional
documents. The Borrower shall not be deemed to have
complied with Clause 15.1(a) above until the Facility Agent has received
in connection with the additional security certified copies of documents
of the kinds referred to in paragraphs 3, 4 and 5 of Schedule 3, Part A
and such legal opinions in terms acceptable to the Majority Lenders from
such lawyers as they may select.
|
|
15.4
|
Valuation of
Ships. The market value of a Ship at any date is that
shown by the average of two valuations
prepared:
|
|
(a)
|
as
at a date not more than 14 days
previously;
|
|
(b)
|
by
2 Approved Brokers, one appointed by the Borrower and the other by the
Facility Agent;
|
|
(c)
|
with
or without physical inspection of the relevant Ship (as the Facility Agent
may require);
|
|
(d)
|
on
the basis of a sale for prompt delivery for cash on normal arm’s length
commercial terms as between a willing seller and a willing buyer, free of
any existing charter or other contract of employment;
and
|
|
(e)
|
after
deducting the estimated amount of the usual and reasonable expenses which
would be incurred in connection with the
sale,
|
Provided that if
the difference between the 2 valuations obtained at any one time pursuant to
this Clause 15.4 is greater than 15 per cent. a valuation shall be commissioned
from a third Approved Broker appointed by the Facility Agent. Such
valuation shall be conducted in accordance with this Clause 15.4 and the Market
Value of the Ship in such circumstances shall be the average of the initial 2
valuations and the valuation provided by the third Approved Broker.
|
15.5
|
Value of additional
security. The net realisable value of any additional
security which is provided under Clause 15.1 and which consists of a
Security Interest over a vessel shall be that shown by a valuation
complying with the requirements of Clause
15.4.
|
|
15.6
|
Valuations
binding. Any valuation under Clause 15.1(a), 15.4 or
15.5 shall be binding and conclusive as regards the Borrower, as shall be
any valuation which the Majority Lenders make of a security which does not
consist of or include a Security
Interest.
|
|
15.7
|
Provision of
information. The Borrower shall promptly provide the
Facility Agent and any Approved Broker or expert acting under Clause 15.4
or 15.5 with any information which the Facility Agent or the Approved
Broker or expert may request for the purposes of the valuation; and, if
the Borrower fails to provide the information by the date specified in the
request, the valuation may be made on any basis and assumptions which the
Approved Broker or the Majority Lenders (or the expert appointed by them)
consider prudent.
|
|
15.8
|
Payment of valuation
expenses. Without prejudice to the generality of the
Borrower’s obligations under Clauses 20.2, 20.3 and 21.3, the Borrower
shall, on demand, pay the Facility Agent the amount of the reasonable fees
and expenses of any Approved Broker or expert instructed by the Facility
Agent under this Clause and all reasonable legal and other expenses
incurred by any Creditor Party in connection with any matter arising out
of this Clause Provided that so long as
no Event of Default or Potential Event of Default shall have occurred and
be continuing the Borrower shall not be obliged to pay such fees or
expenses in respect of more than one set of valuations of each Ship in any
twelve-month period.
|
|
15.9
|
Frequency of
valuations. The Borrower acknowledges and agrees that
the Facility Agent may commission valuations of the Ships at such times as
the Majority Lenders shall reasonably deem necessary and, in any event,
not less often than once during each 12-month period of the Security
Period.
|
|
16.1
|
Currency and method of
payments. All payments to be
made:
|
|
(a)
|
by
the Lenders to the Facility Agent;
or
|
|
(b)
|
by
the Borrower to the Facility Agent, the Security Trustee or any
Lender,
|
|
under
a Finance Document shall be made to the Facility Agent or to the Security
Trustee, in the case of an amount payable to
it:
|
|
|
(i)
|
by
not later than 11.00 a.m. (New York City time) on the due
date;
|
|
|
(ii)
|
in
same day Dollar funds settled through the New York Clearing House
Interbank Payments System (or in such other Dollar funds and/or settled in
such other manner as the Facility Agent shall specify as being customary
at the time for the settlement of international transactions of the type
contemplated by this Agreement);
|
|
|
(iii)
|
in
the case of an amount payable by a Lender to the Facility Agent or by the
Borrower to the Facility Agent or any Lender, to the account of the
Facility Agent at XX Xxxxxx Xxxxx Bank, New York, SWIFT Code XXXXXX00 (Account No
000-0-000000 under reference “Capital Product Partners L.P. - US$350m
Facility”), or to such other account with such other bank as the Facility
Agent may from time to time notify to the Borrower and the other Creditor
Parties; and
|
|
|
(iv)
|
in
the case of an amount payable to the Security Trustee, to such account as
it may from time to time notify to the Borrower and the other Creditor
Parties.
|
|
16.2
|
Payment on non-Business
Day. If any payment by the Borrower under a Finance
Document would otherwise fall due on a day which is not a Business
Day:
|
|
(a)
|
the
due date shall be extended to the next succeeding Business Day;
or
|
|
(b)
|
if
the next succeeding Business Day falls in the next calendar month, the due
date shall be brought forward to the immediately preceding Business
Day,
|
|
and
interest shall be payable during any extension under paragraph (a) at the
rate payable on the original due
date.
|
|
16.3
|
Basis for calculation of
periodic payments. All interest and commitment fee and
any other payments under any Finance Document which are of an annual or
periodic nature shall
accrue from day to day and shall be calculated on the basis of the actual
number of days elapsed and a 360 day
year.
|
|
16.4
|
Distribution of payments to
Creditor Parties. Subject to Clauses 16.5, 16.6 and
16.7:
|
|
(a)
|
any
amount received by the Facility Agent under a Finance Document for
distribution or remittance to a Lender or the Security Trustee shall be
made available by the Facility Agent to that Lender or, as the case may be
or the Security Trustee by payment, with funds having the same value as
the funds received, to such account as the Lender or the Security Trustee
may have notified to the Facility Agent not less than 5 Business Days
previously; and
|
|
(b)
|
amounts
to be applied in satisfying amounts of a particular category which are due
to the Lenders generally shall be distributed by the Facility Agent to
each Lender pro rata to the amount in that category which is due to
it.
|
|
16.5
|
Permitted deductions by
Facility Agent. Notwithstanding any other provision of this
Agreement or any other Finance Document, the Facility Agent may, before
making an amount available to a Lender, deduct and withhold from that
amount any sum which is then due and payable to the Facility Agent from
that Lender under any Finance Document or any sum which the Facility Agent
is then entitled under any Finance Document to require that Lender to pay
on demand.
|
|
16.6
|
Facility Agent only obliged to
pay when monies received. Notwithstanding any other
provision of this Agreement or any other Finance Document, the Facility
Agent shall not be obliged to make available to the Borrower or any Lender
any sum which the Facility Agent is expecting to receive for remittance or
distribution to the Borrower or that Lender until the Facility Agent has
satisfied itself that it has received that
sum.
|
|
16.7
|
Refund to Facility Agent of
monies not received. If and to the extent that the
Facility Agent makes available a sum to the Borrower or a Lender, without
first having received that sum, the Borrower or (as the case may be) the
Lender concerned shall, on demand:
|
|
(a)
|
refund
the sum in full to the Facility Agent;
and
|
|
(b)
|
pay
to the Facility Agent the amount (as certified by the Facility Agent)
which will indemnify the Facility Agent against any funding or other loss,
liability or expense incurred by the Facility Agent as a result of making
the sum available before receiving
it.
|
|
16.8
|
Facility Agent may assume
receipt. Clause 16.7 shall not affect any claim which
the Facility Agent has under the law of restitution, and applies
irrespective of whether the Facility Agent had any form of notice that it
had not received the sum which it made
available.
|
|
16.9
|
Creditor Party
accounts. Each Creditor Party shall maintain accounts
showing the amounts owing to it by the Borrower and each Security Party
under the Finance Documents and all payments in respect of those amounts
made by the Borrower and any Security
Party.
|
|
16.10
|
Facility Agent’s memorandum
account. The Facility Agent shall maintain a memorandum
account showing the amounts advanced by the Lenders and all other sums
owing to the Facility Agent and the Security Trustee and each Lender from
the Borrower and each Security Party under the Finance Documents and all
payments in respect of those amounts made by the Borrower and any Security
Party.
|
|
16.11
|
Accounts prima facie
evidence. If any accounts maintained under Clauses 16.9
and 16.10 show an amount to be owing by the Borrower or a Security Party
to a Creditor Party,
those accounts shall, absent manifest error, be prima facie evidence that
that amount is owing to that Creditor
Party.
|
|
17.1
|
Normal order of
application. Except as any Finance Document may
otherwise provide, any sums which are received or recovered by any
Creditor Party under or by virtue of any Finance Document shall be
applied:
|
|
(a)
|
FIRST:
in or towards satisfaction of any amounts then due and payable under the
Finance Documents (other than under the Master Agreement) in the following
order and proportions:
|
|
|
(i)
|
first,
in or towards satisfaction pro rata of all amounts then due and payable to
the Creditor Parties under the Finance Documents (other than the Master
Agreement) other than those amounts referred to at paragraphs (ii) and
(iii) (including, but without limitation, all amounts payable by the
Borrower under Clauses 20, 21 and 22 of this Agreement or by the Borrower
or any Security Party under any corresponding or similar provision in any
other Finance Document (other than the Master
Agreement));
|
|
|
(ii)
|
secondly,
in or towards satisfaction pro rata of any and all amounts of interest or
default interest payable to the Creditor Parties under the Finance
Documents (other than under the Master Agreement);
and
|
|
|
(iii)
|
thirdly,
in or towards satisfaction of the
Loan;
|
|
(b)
|
SECONDLY: in
or towards satisfaction of any amounts then due and payable under the
Master Agreement in the following order and
proportions:
|
|
|
(i)
|
first,
in or towards satisfaction pro rata of all amounts then due and payable to
the Swap Bank under the Master Agreement other than those amounts referred
to at paragraphs (ii) and (iii);
|
|
|
(ii)
|
secondly,
in or towards satisfaction pro rata of any and all amounts of interest or
default interest payable to the Swap Bank under the Master Agreement (and,
for this purpose, the expression “interest” shall include
any net amount which the Borrower shall have become liable to pay or
deliver under section 2(e) (Obligations) of the Master Agreement but shall
have failed to pay or deliver to the Swap Bank at the time of application
or distribution under this Clause 17);
and
|
|
|
(iii)
|
thirdly,
in or towards satisfaction of the Swap Exposure of the Swap Bank
calculated as at the actual Early Termination Date applying to each
particular Designated Transaction, or if no such Early Termination Date
shall have occurred, calculated as if an Early Termination Date occurred
on the date of application or distribution
hereunder);
|
|
(c)
|
THIRDLY:
in retention of an amount equal to any amount not then due and payable
under any Finance Document (other than the Master Agreement) but which the
Facility Agent, by notice to the Borrower, the Security Parties and the
other Creditor Parties, states in its opinion will or may become due and
payable in the future and, upon those amounts becoming due and payable, in
or towards satisfaction of them in accordance with the foregoing
provisions of this Clause;
|
|
(d)
|
FOURTHLY:
in retention of an amount equal to any amount not then due under and
payable under the Master Agreement but which the Swap Bank, by notice to
the Borrower,
the Security Parties and the other Creditor Parties, states in its opinion
will or may become due and payable in the future and, upon those amounts
becoming due and payable, in or towards satisfaction of them in accordance
with the foregoing provisions of this Clause;
and
|
|
(e)
|
FIFTHLY:
any surplus shall be paid to the Borrower or to any other person appearing
to be entitled to it.
|
|
17.2
|
Variation of order of
application. The Facility Agent may, with the
authorisation of the Majority Lenders, by notice to the Borrower, the
Security Parties and the other Creditor Parties provide for a different
manner of application from that set out in Clause 17.1 either as regards a
specified sum or sums or as regards sums in a specified category or
categories.
|
|
17.3
|
Notice of variation of order of
application. The Facility Agent may give notices under
Clause 17.2 from time to time; and such a notice may be stated to apply
not only to sums which may be received or recovered in the future, but
also to any sum which has been received or recovered on or after the third
Business Day before the date on which the notice is
served.
|
|
17.4
|
Appropriation rights
overridden. This Clause 17 and any notice which the
Facility Agent gives under Clause 17.2 shall override any right of
appropriation possessed, and any appropriation made, by the Borrower or
any Security Party.
|
|
18.1
|
Payment of
Earnings. The Borrower undertakes with each Creditor
Party to ensure that, throughout the Security Period (subject only to the
provisions of the General Assignments), all the Earnings of each Ship are
paid to the Earnings Account for that Ship and all payments by the Swap
Bank to the Borrower under a Designated Transaction are paid to the Swap
Account. Any monies standing to the credit of the Earnings
Accounts shall be freely available to the Owners subject to there not
being any Event of Default or Potential Event of Default in existence at
the relevant time.
|
|
18.2
|
Retentions. The
Borrower undertakes with each Creditor Party (only if the circumstances
referred to in Clause 8.2(a) shall apply at the relevant time) to ensure
that no later than 3 Business Days after a Relevant Distribution
Declaration Date, there shall be transferred to the Retention Account out
of the aggregate Earnings received in the Earnings Accounts, the repayment
instalment falling due under Clause 8.2(a) at that
time.
|
|
18.3
|
Application of
Earnings. The Borrower undertakes with the Lenders to
procure that money from time to time credited to, or for the time being
standing to the credit of, an Earnings Account shall, unless and until an
Event of Default or Potential Event of Default shall have occurred
(whereupon the provisions of Clause 17.1 shall be and become applicable),
be available for application in the following
manner:
|
|
(a)
|
in
or towards meeting the costs and expenses from time to time incurred by or
on behalf of the relevant Owner in connection with the operation of the
Ship owned by it;
|
|
(b)
|
in
or towards making payments of all amounts due and payable by the Borrower
under this Agreement other than the payments of principal and interest
pursuant to Clauses 8.2 and 5.1;
|
|
(c)
|
in
or towards making any transfers to the Retention Account in accordance
with Clause 18.2; and
|
|
(d)
|
as
to any surplus from time to time arising on an Earnings Account following
application as aforesaid, to be paid to the relevant Owner or to
whomsoever it may direct.
|
|
18.4
|
Application of
retentions. Until an Event of Default occurs, the
Facility Agent shall on each due date for the payment of interest under
this Agreement distribute to the Lenders in accordance with Clause 16.4 so
much of the then balance on the Retention Account as equals any repayment
instalment due in accordance with Clause 8.2(a) on that interest payment
date in discharge of the Borrower’s liability for that repayment
instalment.
|
|
18.5
|
Interest accrued on Retention
Account. Any credit balance on the Retention Account
shall bear interest at the rate from time to time offered by the Facility
Agent to its customers for Dollar deposits of similar amounts and for
periods similar to those for which such balances appear to the Facility
Agent likely to remain on the Retention
Account.
|
|
18.6
|
Release of accrued
interest. Interest accruing under Clause 18.5 shall be
released to the Borrower on each interest payment date unless an Event of
Default or a Potential Event of Default has occurred or the then credit
balance on the Retention Account is less than what would have been the
balance had the full amount required by Clause 18.2 been transferred in
that and each previous month.
|
|
18.7
|
Location of
accounts. The Borrower shall
promptly:
|
|
(a)
|
comply
or procure compliance by the Owners with any requirement of the Facility
Agent as to the location or re-location of the Retention Account, the Swap
Account and the Earnings Accounts (or any of them);
and
|
|
(b)
|
execute
any documents which the Facility Agent specifies to create or maintain in
favour of the Lenders a Security Interest over the Retention Account, the
Swap Account and the Earnings Accounts (or any of
them).
|
|
19.1
|
Events of
Default. An Event of Default occurs
if:
|
|
(a)
|
the
Borrower or any Security Party fails to pay when due or (if so payable) on
demand any sum payable under a Finance Document or under any document
relating to a Finance Document; or
|
|
(b)
|
any
breach occurs of Clause 9.2, 11.2, 11.3, 12.2, 12.3, 12.5, 13.2, 13.3,
15.1 or 18.1; or
|
|
(c)
|
any
breach by the Borrower or any Security Party occurs of any provision of a
Finance Document (other than a breach covered by paragraphs (a) or (b)
above) if, in the reasonable opinion of the Majority Lenders, such default
is capable of remedy, and such default continues unremedied 20 days after
written notice from the Facility Agent requesting action to remedy the
same; or
|
|
(d)
|
(subject
to any applicable grace period specified in the Finance Document) any
breach by the Borrower or any Security Party occurs of any provision of a
Finance Document (other than a breach covered by paragraphs (a), (b) or
(c) above); or
|
|
(e)
|
any
representation, warranty or statement made by, or by an officer of, the
Borrower or a Security Party in a Finance Document or in a Drawdown Notice
or any other notice or document relating to a Finance Document is untrue
or misleading when it is made; or
|
|
(f)
|
any
of the following occurs in relation to any Financial Indebtedness of a
Relevant Person exceeding $750,000 (or, in the case of the Borrower,
$5,000,000) (or, in either case, the equivalent in any other currency) in
aggregate:
|
|
|
(i)
|
any
Financial Indebtedness of a Relevant Person is not paid when due or, if so
payable, on demand; or
|
|
|
(ii)
|
any
Financial Indebtedness of a Relevant Person becomes due and payable or
capable of being declared due and payable prior to its stated maturity
date as a consequence of any event of default;
or
|
|
|
(iii)
|
a
lease, hire purchase agreement or charter creating any Financial
Indebtedness of a Relevant Person is terminated by the lessor or owner or
becomes capable of being terminated as a consequence of any termination
event; or
|
|
|
(iv)
|
any
overdraft, loan, note issuance, acceptance credit, letter of credit,
guarantee, foreign exchange or other facility, or any swap or other
derivative contract or transaction, relating to any Financial Indebtedness
of a Relevant Person ceases to be available or becomes capable of being
terminated as a result of any event of default, or cash cover is required,
or becomes capable of being required, in respect of such a facility as a
result of any event of default; or
|
|
|
(v)
|
any
Security Interest securing any Financial Indebtedness of a Relevant Person
becomes enforceable; or
|
|
(g)
|
any
of the following occurs in relation to a Relevant
Person:
|
|
|
(i)
|
a
Relevant Person becomes, in the reasonable opinion of the Majority
Lenders, unable to pay its debts as they fall due;
or
|
|
|
(ii)
|
any
assets of a Relevant Person are subject to any form of execution,
attachment, arrest, sequestration or distress in respect of a sum of, or
sums aggregating, $1,000,000 or more or the equivalent in another currency
unless such execution, attachment, arrest, sequestration or distress is
dismissed, withdrawn, released or lifted within 15 Business Days of the
occurrence of such event; or
|
|
|
(iii)
|
any
administrative or other receiver is appointed over any asset of a Relevant
Person; or
|
|
|
(iv)
|
a
Relevant Person makes any formal declaration of bankruptcy or any formal
statement to the effect that it is insolvent or likely to become
insolvent, or a winding up or administration order is made in relation to
a Relevant Person, or the members or directors of a Relevant Person pass a
resolution to the effect that it should be wound up, placed in
administration or cease to carry on business, save that this paragraph
does not apply to a fully solvent winding up of a Relevant Person other
than the Borrower or an Owner which is, or is to be, effected for the
purposes of an amalgamation or reconstruction previously approved by the
Majority Lenders and effected not later than 3 months after the
commencement of the winding up; or
|
|
|
(v)
|
a
petition is presented in any Pertinent Jurisdiction for the winding up or
administration, or the appointment of a provisional liquidator, of a
Relevant Person unless the petition is being contested in good faith and
on substantial grounds and is dismissed or withdrawn within 30 days of the
presentation of the petition; or
|
|
|
(vi)
|
a
Relevant Person petitions a court, or presents any proposal for, any form
of judicial or non-judicial suspension or deferral of payments,
reorganisation of its debt (or certain of its debt) or arrangement with
all or a substantial proportion (by number or value) of its creditors or
of any class of them or any such suspension or deferral of payments,
reorganisation or arrangement is effected by court order, contract or
otherwise; or
|
|
|
(vii)
|
any
meeting of the members or directors of a Relevant Person is summoned for
the purpose of considering a resolution or proposal to authorise or take
any action of a type described in paragraphs (iii), (iv), (v) or (vi)
above; or
|
|
(viii)
|
in
a Pertinent Jurisdiction other than England, any event occurs or any
procedure is commenced which, in the opinion of the Majority Lenders, is
similar to any of the foregoing; or
|
|
(h)
|
the
Borrower or any Owner ceases or suspends carrying on its business or a
part of its business which, in the opinion of the Majority Lenders, is
material in the context of this Agreement;
or
|
|
(i)
|
it
becomes unlawful in any Pertinent Jurisdiction or
impossible:
|
|
|
(i)
|
for
the Borrower or any Security Party to discharge any liability under a
Finance Document or to comply with any other obligation which the Majority
Lenders consider material under a Finance Document;
or
|
|
|
(ii)
|
for
the Facility Agent, the Security Trustee or the Lenders to exercise or
enforce any right under, or to enforce any Security Interest created by, a
Finance Document; or
|
|
(j)
|
any
official consent necessary to enable any Owner to own, operate or charter
the Ship owned by it or to enable any Owner or any Security Party to
comply with any provision which the Majority Lenders consider material of
a Finance Document is not granted, expires without being renewed, is
revoked or becomes liable to revocation or any condition of such a consent
is not fulfilled; or
|
|
(k)
|
if
the common units of the Borrower cease to be quoted on the Nasdaq National
Market in New York or any other internationally recognised stock exchange
acceptable to the Lenders or if the whole of the issued share capital of
any Owner whose Ship is at the relevant time subject to a Mortgage is not
wholly owned by the Borrower; or
|
|
(l)
|
any
provision which the Majority Lenders reasonably consider material of a
Finance Document proves to have been or becomes invalid or unenforceable,
or a Security Interest created by a Finance Document proves to have been
or becomes invalid or unenforceable or such a Security Interest proves to
have ranked after, or loses its priority to, another Security Interest or
any other third party claim or interest;
or
|
|
(m)
|
the
Master Agreement is terminated, cancelled, suspended, rescinded or revoked
or otherwise ceases to remain in full force and effect for any reason
except with the consent of the Facility Agent, acting with the
authorisation of the Majority Lenders;
or
|
|
(n)
|
an
Event of Default (as defined in Section 14 of the Master Agreement) occurs
which remains unremedied 5 Business Days after the occurrence thereof;
or
|
|
(o)
|
the
security constituted by a Finance Document is in any way imperilled or in
jeopardy; or
|
|
(p)
|
any
other event occurs or any other circumstances arise or develop including,
without limitation:
|
|
|
(i)
|
a
material adverse change in the financial position, state of affairs or
prospects of the Borrower or the Owners;
or
|
|
|
(ii)
|
any
accident or other event involving a Ship or another vessel owned,
chartered or operated by a Relevant
Person,
|
|
in
the light of which the Majority Lenders reasonably consider that there is
a significant risk that any Security Party is, or will later become,
unable to discharge its liabilities under the Finance Documents as they
fall due.
|
|
19.2
|
Actions following an Event of
Default. On, or at any time after, the occurrence of an
Event of Default:
|
|
(a)
|
the
Facility Agent may, and if so instructed by the Majority Lenders, the
Facility Agent shall:
|
|
|
(i)
|
serve
on the Borrower a notice stating that the Commitments and all other
obligations of each Lender to the Borrower under this Agreement are
terminated; and/or
|
|
|
(ii)
|
serve
on the Borrower a notice stating that the Loan, all accrued interest and
all other amounts accrued or owing under this Agreement are immediately
due and payable or are due and payable on demand;
and/or
|
|
|
(iii)
|
take
any other action which, as a result of the Event of Default or any notice
served under paragraph (i) or (ii) above, the Facility Agent and/or the
Lenders are entitled to take under any Finance Document or any applicable
law; and/or
|
|
(b)
|
the
Security Trustee may, and if so instructed by the Facility Agent, acting
with the authorisation of the Majority Lenders, the Security Trustee shall
take any action which, as a result of the Event of Default or any notice
served under paragraph (a) (i) or (ii) above, the Security Trustee, the
Facility Agent and/or the Lenders are entitled to take under any Finance
Document or any applicable law.
|
|
19.3
|
Termination of
Commitments. On the service of a notice under paragraph
(a)(i) of Clause 19.2, the Commitments and all other obligations of each
Lender to the Borrower under this Agreement shall
terminate.
|
|
19.4
|
Acceleration of
Loan. On the service of a notice under paragraph (a)(ii)
of Clause 19.2, the Loan, all accrued interest and all other amounts
accrued or owing from the Borrower or any Security Party under this
Agreement and every other Finance Document shall become immediately due
and payable or, as the case may be, payable on
demand.
|
|
19.5
|
Multiple notices; action
without notice. The Facility Agent may serve notices
under paragraphs (a) (i) and (ii) of Clause 19.2 simultaneously or on
different dates and it and/or the Security Trustee may take any action
referred to in that Clause if no such notice is served or simultaneously
with or at any time after the service of both or either of such
notices.
|
|
19.6
|
Notification of Creditor
Parties and Security Parties. The Facility Agent shall
send to each Lender, the Security Trustee and each Security Party a copy
or the text of any notice which the Facility Agent serves on the Borrower
under Clause 19.2; but the notice shall become effective when it is served
on the Borrower, and no failure or delay by the Facility Agent to send a
copy or the text of the notice to any other person shall invalidate the
notice or provide the Borrower or any Security Party with any form of
claim or defence.
|
|
19.7
|
Lender’s rights
unimpaired. Nothing in this Clause shall be taken to
impair or restrict the exercise of any right given to individual Lenders
under a Finance Document or the general law; and, in particular, this
Clause is without prejudice to Clause
3.1.
|
|
19.8
|
Exclusion of Creditor Party
Liability. No Creditor Party, and no receiver or manager
appointed by the Security Trustee, shall have any liability to the
Borrower or a Security Party:
|
|
(a)
|
for
any loss caused by an exercise of rights under, or enforcement of a
Security Interest created by, a Finance Document or by any failure or
delay to exercise such a right or to enforce such a Security Interest;
or
|
|
(b)
|
as
mortgagee in possession or otherwise, for any income or principal amount
which might have been produced by or realised from any asset comprised in
such a Security Interest or for any reduction (however caused) in the
value of such an asset,
|
|
except
that this does not exempt a Creditor Party or a receiver or manager from
liability for losses shown to have been caused by the gross negligence or
the wilful misconduct of such Creditor Party’s own officers and employees
or ( as the case may be) such receiver’s or manager’s own partners or
employees.
|
|
19.9
|
Relevant
Persons. In this Clause 19 “a Relevant Person” means
the Borrower, an Owner and any company which is a subsidiary of the
Borrower or an Owner.
|
|
19.10
|
Interpretation. In
Clause 19.1(f) references to an event of default or a termination event
include any event, howsoever described, which is similar to an event of
default in a facility agreement or a termination event in a finance lease;
and in Clause 19.1(g) “petition” includes an
application.
|
|
20.1
|
Commitment and certain other
fees. The Borrower shall pay to the Facility
Agent:
|
|
(a)
|
a
commitment fee for distribution among the Lenders pro rata to their
Commitments at the rate of 0.325 per cent. per annum on the amount of the
Total Commitments less the amount of the Loan for the period from (and
including) the date of this Agreement up to and including the Termination
Date, such fee to be paid quarterly in arrears and on the last day of such
period; and
|
|
(b)
|
certain
other fees as are referred to in the Fee Letter, such fees to be in such
amount and to be payable at the times and in the manner referred to in the
Fee Letter.
|
|
20.2
|
Costs of negotiation,
preparation etc. The Borrower shall pay to the Facility
Agent on its demand the amount of all expenses incurred by the Facility
Agent or the Security Trustee in connection with the negotiation,
preparation, execution or registration of any Finance Document or any
related document (including, for the avoidance of doubt, any expenses
incurred by the Lenders in obtaining the legal opinions referred to in
Schedule 3) or with any transaction contemplated by a Finance Document or
a related document.
|
|
20.3
|
Costs of variations,
amendments, enforcement etc. The Borrower shall pay to
the Facility Agent, on the Facility Agent’s demand, the amount of all
expenses incurred by a Lender in connection
with:
|
|
(a)
|
any
amendment or supplement to a Finance Document, or any proposal for such an
amendment to be made;
|
|
(b)
|
any
consent or waiver by the Lenders, the Majority Lenders or the Lender
concerned under or in connection with a Finance Document, or any request
for such a consent or waiver;
|
|
(c)
|
the
valuation of any security provided or offered under Clause 15 or any other
matter relating to such security;
|
|
(d)
|
where
the Facility Agent, in its absolute opinion, considers that there has been
a material change to the insurances in respect of any Ship, the review of
the insurances or any Ship pursuant to Clause 13.18;
and
|
|
(e)
|
any
step taken by any Lender concerned with a view to the protection, exercise
or enforcement of any right or Security Interest created by a Finance
Document or for any similar
purpose.
|
|
There
shall be recoverable under paragraph (d) the full amount of all legal
expenses, whether or not such as would be allowed under rules of court or
any taxation or other procedure carried out under such
rules.
|
|
20.4
|
Documentary
taxes. The Borrower shall promptly pay any tax payable
on or by reference to any Finance Document, and shall, on the Facility
Agent’s demand, fully indemnify each Creditor Party against any
liabilities and expenses resulting from any failure or delay by the
Borrower to pay such a tax.
|
|
20.5
|
Certification of
amounts. A notice which is signed by two officers of a
Creditor Party, which states that a specified amount, or aggregate amount,
is due to that Creditor Party under this Clause 20 and which indicates
(without necessarily specifying a detailed breakdown) the matters in
respect of which the amount, or aggregate amount, is due shall be prima
facie evidence that the amount, or aggregate amount, is
due.
|
|
21
|
|
21.1
|
Indemnities regarding borrowing
and repayment of Loan. The Borrower shall fully
indemnify the Facility Agent and each Lender on the Facility Agent’s
demand and the Security Trustee on its demand in respect of all expenses,
liabilities and losses which are incurred by that Creditor Party, or which
that Creditor Party reasonably and with due diligence estimates that it
will incur, as a result of or in connection
with:
|
|
(a)
|
an
Advance not being borrowed on the date specified in the Drawdown Notice
for any reason other than a default by the Lender claiming the
indemnity;
|
|
(b)
|
the
receipt or recovery of all or any part of the Loan or an overdue sum
otherwise than on the last day of an Interest Period or other relevant
period;
|
|
(c)
|
any
failure (for whatever reason) by the Borrower to make payment of any
amount due under a Finance Document on the due date or, if so payable, on
demand (after giving credit for any default interest paid by the Borrower
on the amount concerned under Clause 7);
and
|
|
(d)
|
the
occurrence and/or continuance of an Event of Default or a Potential Event
of Default and/or the acceleration of repayment of the Loan under Clause
19, and
in respect of any tax (other than tax on its overall net income) for which
a Creditor Party is liable in connection with any amount paid or payable
to that Creditor Party (whether for its own account or otherwise) under
any Finance Document.
|
|
21.2
|
Breakage
costs. Without limiting its generality, Clause 21.1
covers any liability, expense or loss, including a loss of a prospective
profit, incurred by a Lender:
|
|
(a)
|
in
liquidating or employing deposits from third parties acquired or arranged
to fund or maintain all or any part of its Contribution and/or any overdue
amount (or an aggregate amount which includes its Contribution or any
overdue amount); and
|
|
(b)
|
in
terminating, or otherwise in connection with, any interest and/or currency
swap or any other transaction entered into (whether with another legal
entity or with another office or department of the Lender concerned) to
hedge any exposure arising under this Agreement or that part which the
Lender concerned determines is fairly attributable to this Agreement of
the amount of the liabilities, expenses or losses (including losses of
prospective profits) incurred by it in terminating, or otherwise in
connection with, a number of transactions of which this Agreement is
one.
|
|
21.3
|
Miscellaneous
indemnities. The Borrower shall fully indemnify the
Facility Agent and the Security Trustee severally on their respective
demands in respect of all claims, demands, proceedings, liabilities,
taxes, losses and expenses of every kind (“liability items”) which
may be made or brought against, or incurred by, the Facility Agent or the
Security Trustee, in any country, in relation
to:
|
|
(a)
|
any
action taken, or omitted or neglected to be taken, under or in connection
with any Finance Document by the Facility Agent, the Security Trustee or
any other Creditor Party or by any receiver appointed under a Finance
Document; and
|
|
(b)
|
any
other event, matter or question which occurs or arises at any time during
the Security Period and which has any connection with, or any bearing on,
any Finance Document, any payment or other transaction relating to a
Finance Document or any asset covered (or previously covered) by a
Security Interest created (or intended to be created) by a Finance
Document,
|
|
other
than liability items which are shown to have been caused by the gross
negligence or the wilful misconduct of the Facility Agent’s or (as the
case may be) the Security Trustee’s own officers or
employees.
|
|
21.4
|
Extension of indemnities;
environmental indemnity. Without prejudice to its
generality, Clause 21.3 covers:
|
|
(a)
|
any
matter which would be covered by Clause 20.3 if any of the references in
that Clause to a Lender were a reference to the Facility Agent or (as the
case may be) to the Security Trustee;
and
|
|
(b)
|
any
liability items which arise, or are asserted, under or in connection with
any law relating to safety at sea, pollution or the protection of the
environment, the ISM Code or the ISPS
Code.
|
|
21.5
|
Currency
indemnity. If any sum due from the Borrower or any
Security Party to a Creditor Party under a Finance Document or under any
order or judgment relating to a Finance Document has to be converted from
the currency in which the Finance Document provided for the sum to be paid
(the “Contractual
Currency”) into another currency (the “Payment Currency”) for
the purpose of:
|
|
(a)
|
making
or lodging any claim or proof against the Borrower or any Security Party,
whether in its liquidation, any arrangement involving it or otherwise;
or
|
|
(b)
|
obtaining
an order or judgment from any court or other tribunal;
or
|
|
(c)
|
enforcing
any such order or judgment,
|
|
the
Borrower shall indemnify the Creditor Party concerned against the loss
arising when the amount of the payment actually received by that Creditor
Party is converted at the available rate of exchange into the Contractual
Currency.
|
|
In
this Clause 21.5, the “available rate of
exchange” means the rate at which the Creditor Party concerned is
able at the opening of business (London time) on the Business Day after it
receives the sum concerned to purchase the Contractual Currency with the
Payment Currency.
|
|
This
Clause 21.5 creates a separate liability of the Borrower which is distinct
from its other liabilities under the Finance Documents and which shall not
be merged in any judgment or order relating to those other
liabilities.
|
|
21.6
|
Certification of
amounts. A notice which is signed by 2 officers of a
Creditor Party, which states that a specified amount, or aggregate amount,
is due to that Creditor Party under this Clause 21 and which indicates
(without necessarily specifying a detailed breakdown) the matters in
respect of which the amount, or aggregate amount, is due shall be prima
facie evidence that the amount, or aggregate amount, is
due.
|
|
21.7
|
Sums deemed due to a
Lender. For the purposes of this Clause 21, a sum
payable by the Borrower to the Facility Agent or the Security Trustee for
distribution to a Lender shall be treated as a sum due to that
Lender.
|
|
22.1
|
No
deductions. All amounts due from the Borrower under a
Finance Document shall be paid:
|
|
(a)
|
without
any form of set-off, cross-claim or condition;
and
|
|
(b)
|
free
and clear of any tax deduction except a tax deduction which the Borrower
is required by law to make.
|
|
22.2
|
Grossing-up for
taxes. If the Borrower is required by law to make a tax
deduction from any payment:
|
|
(a)
|
the
Borrower shall notify the Facility Agent as soon as it becomes aware of
the requirement;
|
|
(b)
|
the
Borrower shall pay the tax deducted to the appropriate taxation authority
promptly, and in any event before any fine or penalty arises;
and
|
|
(c)
|
the
amount due in respect of the payment shall be increased by the amount
necessary to ensure that each Creditor Party receives and retains (free
from any liability relating to the tax deduction) a net amount which,
after the tax deduction, is equal to the full amount which it would
otherwise have received.
|
|
22.3
|
Evidence of payment of
taxes. Within 1 month after making any tax deduction,
the Borrower shall deliver to the Facility Agent documentary evidence
satisfactory to the Facility Agent that the tax had been paid to the
appropriate taxation authority.
|
|
22.4
|
Exclusion of tax on overall net
income. In this Clause 22 “tax deduction” means any
deduction or withholding for or on account of any present or future tax
except tax on a Creditor Party’s overall net
income.
|
|
23.1
|
Illegality. This
Clause 23 applies if a Lender (the “Notifying Lender”)
notifies the Facility Agent that it has become, or will with effect from a
specified date, become:
|
|
(a)
|
unlawful
or prohibited as a result of the introduction of a new law, an amendment
to an existing law or a change in the manner in which an existing law is
or will be interpreted or applied;
or
|
|
(b)
|
contrary
to, or inconsistent with, any
regulation,
|
|
for
the Notifying Lender to maintain or give effect to any of its obligations
under this Agreement in the manner contemplated by this
Agreement.
|
|
23.2
|
Notification of
illegality. The Facility Agent shall promptly notify the
Borrower, the Security Parties, the Security Trustee and the other Lenders
of the notice under Clause 23.1 which the Facility Agent receives from the
Notifying Lender.
|
|
23.3
|
Prepayment; termination of
Commitment. On the Facility Agent notifying the Borrower
under Clause 23.2, the Notifying Lender’s Commitment shall terminate; and
thereupon or, if later, on the date specified in the Notifying Lender’s
notice under Clause 23.1 as the date on which the notified event would
become effective the Borrower shall prepay the Notifying Lender’s
Contribution in accordance with Clause
8.
|
|
24.1
|
Increased
costs. This Clause 24 applies if a Lender (the “Notifying Lender”)
notifies the Facility Agent that the Notifying Lender considers that as a
result of:
|
|
(a)
|
the
introduction or alteration after the date of this Agreement of a law or an
alteration after the date of this Agreement in the manner in which a law
is interpreted or applied (disregarding any effect which relates to the
application to payments under this Agreement of a tax on the Lender’s
overall net income); or
|
|
(b)
|
the
effect of complying with any regulation (including any which relates to
capital adequacy or liquidity controls or which affects the manner in
which the Notifying Lender allocates capital resources to its obligations
under this Agreement including, without limitation, the implementation of
any regulations which may replace those set out in the statement of the
Basle Committee on Banking Regulations and Supervisory Practices dated
July 1998 and entitled “International Convergence of Capital Measurement
and Capital Structures”) which is introduced, or altered, or the
interpretation or application of which is altered, after the date of this
Agreement,
|
|
is
that the Notifying Lender (or a parent company of it) has incurred or will
incur an “increased
cost”, that is to say,:
|
|
|
(i)
|
an
additional or increased cost incurred as a result of, or in connection
with, the Notifying Lender having entered into, or being a party to, this
Agreement or a Transfer Certificate, of funding or maintaining its
Commitment or Contribution or performing its obligations under this
Agreement, or of having outstanding all or any part of its Contribution or
other unpaid sums; or
|
|
|
(ii)
|
a
reduction in the amount of any payment to the Notifying Lender under this
Agreement or in the effective return which such a payment represents to
the Notifying Lender or on its
capital;
|
|
|
(iii)
|
an
additional or increased cost of funding all or maintaining all or any of
the advances comprised in a class of advances formed by or including the
Notifying Lender’s Contribution or (as the case may require) the
proportion of that cost attributable to the Contribution;
or
|
|
|
(iv)
|
a
liability to make a payment, or a return foregone, which is calculated by
reference to any amounts received or receivable by the Notifying Lender
under this Agreement,
|
|
but
not an item attributable to a change in the rate of tax on the overall net
income of the Notifying Lender (or a parent company of it) or an item
covered by the indemnity for tax in Clause 21.1 or by Clause
22.
|
|
For
the purposes of this Clause 24.1 the Notifying Lender may in good faith
allocate or spread costs and/or losses among its assets and liabilities
(or any class thereof) on such basis as it considers
appropriate.
|
|
24.2
|
Notification to Borrower of
claim for increased costs. The Facility Agent shall
promptly notify the Borrower and the Security Parties of the notice which
the Facility Agent received from the Notifying Lender under Clause
24.1.
|
|
24.3
|
Payment of increased
costs. The Borrower shall pay to the Facility Agent, on
the Facility Agent’s demand, for the account of the Notifying Lender the
amounts which the Facility Agent from time to time notifies the Borrower
that the Notifying Lender has specified to be necessary to compensate the
Notifying Lender for the increased
cost.
|
|
24.4
|
Notice of
prepayment. If the Borrower is not willing to continue
to compensate the Notifying Lender for the increased cost under Clause
24.3, the Borrower may give the Facility Agent not less than 15 days’
notice of its intention to prepay the Notifying Lender’s Contribution at
the end of an Interest Period.
|
|
24.5
|
Prepayment; termination of
Commitment. A notice under Clause 24.4 shall be
irrevocable; the Facility Agent shall promptly notify the Notifying Lender
of the Borrower’s notice of intended prepayment;
and:
|
|
(a)
|
on
the date on which the Facility Agent serves that notice, the Commitment of
the Notifying Lender shall be cancelled;
and
|
|
(b)
|
on
the date specified in its notice of intended prepayment, the Borrower
shall prepay (without premium or penalty) the Notifying Lender’s
Contribution, together with accrued interest thereon at the applicable
rate plus the applicable Margin.
|
|
24.6
|
Application of
prepayment. Clause 8 shall apply in relation to the
prepayment.
|
|
25
|
|
25.1
|
Application of credit
balances. Each Creditor Party may following the
occurrence of an Event of Default and without prior
notice:
|
|
(a)
|
apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of the Borrower at any office in any
country of that Creditor Party in or towards satisfaction of any sum then
due from the Borrower to that Creditor Party under any of the Finance
Documents; and
|
|
(b)
|
for
that purpose:
|
|
|
(i)
|
break,
or alter the maturity of, all or any part of a deposit of the
Borrower;
|
|
|
(ii)
|
convert
or translate all or any part of a deposit or other credit balance into
Dollars; and
|
|
|
(iii)
|
enter
into any other transaction or make any entry with regard to the credit
balance which the Creditor Party concerned considers
appropriate.
|
|
25.2
|
Existing rights
unaffected. No Creditor Party shall be obliged to
exercise any of its rights under Clause 25.1; and those rights shall be
without prejudice and in addition to any right of set-off, combination of
accounts, charge, lien or other right or remedy to which a Creditor Party
is entitled (whether under the general law or any
document).
|
|
25.3
|
Sums deemed due to a
Lender. For the purposes of this Clause 25, a sum
payable by the Borrower to the Facility Agent or the Security Trustee for
distribution to, or for the account of, a Lender shall be treated as a sum
due to that Lender; and each Lender’s proportion of a sum so payable for
distribution to, or for the account of, the Lenders shall be treated as a
sum due to such Lender.
|
|
26.1
|
Transfer by
Borrower. The Borrower may not, without the consent of
the Facility Agent, given on the instructions of all the
Lenders:
|
|
(a)
|
transfer
any of its rights or obligations under any Finance Document;
or
|
|
(b)
|
enter
into any merger, de-merger or other reorganisation, or carry out any other
act, as a result of which any of its rights or liabilities would vest in,
or pass to, another person.
|
|
26.2
|
Transfer by a
Lender. Subject to Clause 26.4 and the other terms and
conditions of this Clause 26.2, a Lender (the “Transferor Lender”) may
at any time cause:
|
|
(a)
|
its
rights in respect of all or part of its Contribution;
or
|
|
(b)
|
its
obligations in respect of all or part of its Commitment;
or
|
|
(c)
|
a
combination of (a) and (b),
|
|
to
be (in the case of its rights) transferred to, or (in the case of its
obligations) assumed by, any third party, another bank, financial
institution, pension scheme or single purpose vehicle (a “Transferee Lender”) by
delivering to the Facility Agent a completed certificate in the form set
out in Schedule 4 with any modifications approved or required by the
Facility Agent (a “Transfer Certificate”)
executed by the Transferor Lender and the Transferee
Lender.
|
However
any rights and obligations of the Transferor Lender in its capacity as Facility
Agent or Security Trustee will have to be dealt with separately in accordance
with the Agency and Trust Agreement.
A
transfer pursuant to this Clause 26.2 shall:
|
|
(i)
|
require
the prior written consent of the Facility Agent (except in the case of a
transfer to a subsidiary of a
Lender);
|
|
|
(ii)
|
the
Contribution or Commitment (or the combination of the two) being
transferred by the Transferor Lender to the Transferee Lender shall not be
less than $30,000,000;
|
|
|
(iii)
|
be
effected without the consent of, but with notice to, the Borrower and
without any cost to the Borrower:
|
|
|
(A)
|
following
the occurrence of an Event of
Default;
|
|
|
(B)
|
if
such transfer is to a subsidiary or any other company or financial
institution which is in the same ownership or control as the Transferor
Lender; and
|
|
|
(iv)
|
require
the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) in all other
circumstances.
|
|
26.3
|
Transfer Certificate, delivery
and notification. As soon as reasonably practicable
after a Transfer Certificate is delivered to the Facility Agent, it shall
(unless it has reason to believe that the Transfer Certificate may be
defective):
|
|
(a)
|
sign
the Transfer Certificate on behalf of itself the Borrower, the Security
Parties, the Security Trustee and each of the other
Lenders;
|
|
(b)
|
on
behalf of the Transferee Lender, send to the Borrower and each Security
Party letters or faxes notifying them of the Transfer Certificate and
attaching a copy of it; and
|
|
(c)
|
send
to the Transferee Lender copies of the letters or faxes sent under
paragraph (b) above.
|
|
26.4
|
Effective Date of Transfer
Certificate. A Transfer Certificate becomes effective on
the date, if any, specified in the Transfer Certificate as its effective
date Provided that
it is signed by the Facility Agent under Clause 26.3 on or before that
date.
|
|
26.5
|
No transfer without Transfer
Certificate. No assignment or transfer of any right or
obligation of a Lender under any Finance Document is binding on, or
effective in relation to, the Borrower, any Security Party, the Facility
Agent or the Security Trustee unless it is effected, evidenced or
perfected by a Transfer
Certificate.
|
|
26.6
|
Lender re-organisation; waiver
of Transfer Certificate. However, if a Lender enters
into any merger, de-merger or other reorganisation as a result of which
all its rights or obligations vest in another person (the “successor”), the
Facility Agent may, if it sees fit, by notice to the successor and the
Borrower and the Security Trustee waive the need for the execution and
delivery of a Transfer Certificate; and, upon service of the Facility
Agent’s notice, the successor shall become a Lender with the same
Commitment and Contribution as were held by the predecessor
Lender.
|
|
26.7
|
Effect of Transfer
Certificate. A Transfer Certificate takes effect in
accordance with English law as
follows:
|
|
(a)
|
to
the extent specified in the Transfer Certificate, all rights and interests
(present, future or contingent) which the Transferor Lender has under or
by virtue of the Finance Documents are assigned to the Transferee Lender
absolutely, free of any defects in the Transferor Lender’s title and of
any rights or equities which the Borrower or any Security Party had
against the Transferor Lender;
|
|
(b)
|
the
Transferor Lender’s Commitment is discharged to the extent specified in
the Transfer Certificate;
|
|
(c)
|
the
Transferee Lender becomes a Lender with the Contribution previously held
by the Transferor Lender and a Commitment of an amount specified in the
Transfer Certificate;
|
|
(d)
|
the
Transferee Lender becomes bound by all the provisions of the Finance
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 Facility Agent and the Security Trustee and,
to the extent that the Transferee Lender becomes bound by those provisions
(other than those relating to exclusion of liability), the Transferor
Lender ceases to be bound by them;
|
|
(e)
|
any
part of the Loan which the Transferee Lender advances after the Transfer
Certificate’s effective date ranks in point of priority and security in
the same way as it would have ranked had it been advanced by the
transferor, assuming that any defects in the transferor’s title and any
rights or equities of the Borrower or any Security Party against the
Transferor Lender had not existed;
|
|
(f)
|
the
Transferee Lender becomes entitled to all the rights under the Finance
Documents which are applicable to the Lenders generally, including but not
limited to those relating to the Majority Lenders and those under Clause
5.7 and Clause 20, and to the extent that the Transferee Lender becomes
entitled to such rights, the Transferor Lender ceases to be entitled to
them; and
|
|
(g)
|
in
respect of any breach of a warranty, undertaking, condition or other
provision of a Finance Document or any misrepresentation made in or in
connection with a Finance Document, the Transferee Lender shall be
entitled to recover damages by reference to the loss incurred by it as a
result of the breach or misrepresentation, irrespective of whether the
original Lender would have incurred a loss of that kind or
amount.
|
|
The
rights and equities of the Borrower or any Security Party referred to
above include, but are not limited to, any right of set off and any other
kind of cross-claim.
|
|
26.8
|
Maintenance of register of
Lenders. During the Security Period the Facility Agent
shall maintain a register in which it shall record the name, Commitment,
Contribution and administrative details (including the lending office)
from time to time of each Lender holding a Transfer Certificate and the
effective date (in accordance with Clause 26.4) of the Transfer
Certificate; and the Facility Agent shall make the register available for
inspection by any Lender, the Security Trustee and the Borrower during
normal banking hours, subject to receiving at least 3 Business Days prior
notice.
|
|
26.9
|
Reliance on register of
Lenders. The entries on that register shall, in the
absence of manifest error, be conclusive in determining the identities of
the Lenders and the amounts of their Commitments and Contributions and the
effective dates of Transfer Certificates and may be relied upon by the
Facility Agent and the other parties to the Finance Documents for all
purposes relating to the Finance
Documents.
|
|
26.10
|
Authorisation of Facility Agent
to sign Transfer Certificates. The Borrower, the
Security Trustee and each Lender irrevocably authorise the Facility Agent
to sign Transfer Certificates on its
behalf.
|
|
26.11
|
Registration
fee. In respect of any Transfer Certificate, the
Facility Agent shall be entitled to recover a registration fee of $3,000
(and all costs, fees and expenses incidental to the transfer (including,
but not limited to legal fees and expenses)) from the Transferor Lender or
(at the Facility Agent’s option) the Transferee
Lender.
|
|
26.12
|
Sub-participation; subrogation
assignment. A Lender may sub-participate all or any part of its
rights and/or obligations under or in connection with the Finance
Documents without the consent of, or any notice to, the Borrower, any
Security Party, the Facility Agent or the Security Trustee; and the
Lenders may assign, in any manner and terms agreed by the Majority
Lenders, the Facility Agent and the Security Trustee, all or any part of
those rights to an insurer or surety who has become subrogated to
them.
|
|
26.13
|
Disclosure of
information. A Lender may disclose to a potential
Transferee Lender or sub-participant (as well as to any rating agency,
trustee or accountant) any information which the Lender has received in
relation to the Borrower, any Security Party or their affairs under or in
connection with any Finance Document which the Facility Agent may consider
necessary or appropriate to be disclosed in order to ensure a successful
transfer or sub-participation to a potential Transferee Lender or a
sub-participant and the ongoing monitoring of the Loan by any Lender or
potential Transferee Lender or sub-participant. In such case,
the Facility Agent shall be released from its obligation of secrecy and
confidentiality Provided
that if a potential Transferee Lender, sub-participant, rating
agency, trustee or accountant is not subject to a duty of confidentiality,
the Facility Agent shall require the execution of a confidentiality
agreement by such potential Transferee Lender, sub-participant, rating
agency, trustee or accountant.
|
|
26.14
|
Change of lending
office. A Lender may change its lending office by giving
notice to the Facility Agent and the change shall become effective on the
later of:
|
|
(a)
|
the
date on which the Facility Agent receives the notice;
and
|
|
(b)
|
the
date, if any, specified in the notice as the date on which the change will
come into effect.
|
|
26.15
|
Notification. On
receiving such a notice, the Facility Agent shall notify the Borrower and
the Security Trustee; and, until the Facility Agent receives such a
notice, it shall be entitled to assume that a Lender is acting through the
lending office of which the Facility Agent last had
notice.
|
|
27.1
|
Variations, waivers etc. by
Majority Lenders. Subject to Clause 27.2, a document
shall be effective to vary, waive, suspend or limit any provision of a
Finance Document, or any Creditor Party’s rights or remedies under such a
provision or the general law, only if the document is signed, or
specifically agreed to by fax, by the Borrower, by the Facility Agent on
behalf of the Majority Lenders, by the Facility Agent and the Security
Trustee in their own rights, and, if the document relates to a Finance
Document to which a Security Party is party, by that Security
Party.
|
|
27.2
|
Variations, waivers etc.
requiring agreement of all Lenders. However, as regards
the following, Clause 27.1 applies as if the words “by the Facility Agent
on behalf of the Majority Lenders” were replaced by the words “by or on
behalf of every Lender” (in the case of all the paragraphs below (other
than paragraph (i)) and “by or on behalf of Lenders whose Contributions
total 80 per cent. of the Loan” (in the case of paragraphs (d) and
(i)):
|
|
(a)
|
a
change in the Margin or in the definition of
LIBOR;
|
|
(b)
|
a
change to the date for, the amount of, any payment of principal, interest,
fees, or other sum payable under this
Agreement;
|
|
(c)
|
a
change to any Lender’s Commitment;
|
|
(d)
|
an
extension of the Availability
Period;
|
|
(e)
|
a
change to the definition of “Majority Lenders” or “Finance
Documents”;
|
|
(f)
|
a
change to the preamble or to Clause 2, 3, 4, 5.1, 17, 18 or
30;
|
|
(g)
|
a
change to this Clause 27;
|
|
(h)
|
any
release of, or material variation to, a Security Interest, guarantee,
indemnity or subordination arrangement set out in a Finance
Document;
|
|
(i)
|
any
other change or matter as regards which this Agreement or another Finance
Document expressly provides that each Lender’s consent is required; and
any change to, or waiver of a breach of, Clause 15.1 of this
Agreement.
|
|
27.3
|
Exclusion of other or implied
variations. Except for a document which satisfies the
requirements of Clauses 27.1 and 27.2, no document, and no act, course of
conduct, failure or neglect to act, delay or acquiescence on the part of
the Creditor Parties or any of them (or any person acting on behalf of any
of them) shall result in the Creditor Parties or any of them (or any
person acting on behalf of any of them) being taken to have varied,
waived, suspended or limited, or being precluded (permanently or
temporarily) from enforcing, relying on or
exercising:
|
|
(a)
|
a
provision of this Agreement or another Finance Document;
or
|
|
(b)
|
an
Event of Default; or
|
|
(c)
|
a
breach by the Borrower or a Security Party of an obligation under a
Finance Document or the general law;
or
|
|
(d)
|
any
right or remedy conferred by any Finance Document or by the general
law,
|
|
and
there shall not be implied into any Finance Document any term or condition
requiring any such provision to be enforced, or such right or remedy to be
exercised, within a certain or reasonable
time.
|
|
28
|
|
28.1
|
General. Unless
otherwise specifically provided, any notice under or in connection with
any Finance Document shall be given by letter or fax; and references in
the Finance Documents to written notices, notices in writing and notices
signed by particular persons shall be construed
accordingly.
|
|
28.2
|
Addresses for
communications. A notice shall be
sent:
|
|
(a)
|
to
the Borrower:
|
c/o
Capital Ship Management Corp.
|
|
0
Xxxxxxxx Xxxxxx
|
||
|
000
00 - Xxxxxxx
|
||
|
Xxxxxx
|
||
|
Fax
No: x00 000 0000 000
|
||
|
for
the attention of: the Chief Financial Officer
|
||
|
(b)
|
to
a Lender:
|
at
the address below its name in Schedule 1 or (as the case may require) in
the relevant Transfer Certificate.
|
|
(c)
|
to
the Swap Bank:
|
Zinsderivateabwicklung
OE 3652
|
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
00
|
||
|
00000
Xxxxxxx
|
||
|
Xxxxxxx
|
||
|
Fax
No: x00 00 0000 00000
|
||
|
(d)
|
to
the Facility Agent
|
HSH
Nordbank AG
|
|
and
Security Trustee:
|
Shipping,
Greek clients
|
|
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
00
|
||
|
X-00000
Xxxxxxx
|
||
|
Xxxxxxx
|
||
|
Fax
No: x00 00 0000 00000
|
|
or
to such other address as the relevant party may notify the Facility Agent
or, if the relevant party is the Facility Agent or the Security Trustee,
the Borrower, the Lenders and the Security
Parties.
|
|
28.3
|
Effective date of
notices. Subject to Clauses 28.4 and
28.5:
|
|
(a)
|
a
notice which is delivered personally or posted shall be deemed to be
served, and shall take effect, at the time when it is delivered;
and
|
|
(b)
|
a
notice which is sent by fax shall be deemed to be served, and shall take
effect, 2 hours after its transmission is
completed.
|
|
28.4
|
Service outside business
hours. However, if under Clause 28.3 a notice would be
deemed to be served:
|
|
(a)
|
on
a day which is not a business day in the place of receipt;
or
|
|
(b)
|
on
such a business day, but after 5 p.m. local
time,
|
|
the
notice shall (subject to Clause 28.5) be deemed to be served, and shall
take effect, at 9 a.m. on the next day which is such a business
day.
|
|
28.5
|
Illegible
notices. Clauses 28.3 and 28.4 do not apply if the
recipient of a notice notifies the sender within one hour after the time
at which the notice would otherwise be deemed to be served that the notice
has been received in a form which is illegible in a material
respect.
|
|
28.6
|
Valid
notices. A notice under or in connection with a Finance
Document shall not be invalid by reason that its contents or the manner of
serving it do not comply with the requirements of this Agreement or, where
appropriate, any other Finance Document under which it is served
if:
|
|
(a)
|
the
failure to serve it in accordance with the requirements of this Agreement
or other Finance Document, as the case may be, has not caused any party to
suffer any significant loss or
prejudice; or
|
|
(b)
|
in
the case of incorrect and/or incomplete contents, it should have been
reasonably clear to the party on which the notice was served what the
correct or missing particulars should have
been.
|
|
28.7
|
English
language. Any notice under or in connection with a
Finance Document shall be in
English.
|
|
28.8
|
Meaning of
“notice”. In this Clause “notice” includes any demand,
consent, authorisation, approval, instruction, waiver or other
communication.
|
|
29
|
|
29.1
|
Rights cumulative,
non-exclusive. The rights and remedies which the Finance
Documents give to each Creditor Party
are:
|
|
(a)
|
cumulative;
|
|
(b)
|
may
be exercised as often as appears expedient;
and
|
|
(c)
|
shall
not, unless a Finance Document explicitly and specifically states so, be
taken to exclude or limit any right or remedy conferred by any
law.
|
|
29.2
|
Severability of
provisions. If any provision of a Finance Document is or
subsequently becomes void, unenforceable or illegal, that shall not affect
the validity, enforceability or legality of the other provisions of that
Finance Document or of the provisions of any other Finance
Document.
|
|
29.3
|
Third party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
29.4
|
Counterparts. A
Finance Document may be executed in any number of
counterparts.
|
|
30.1
|
English
law. This Agreement shall be governed by, and construed
in accordance with, English law.
|
|
30.2
|
Exclusive English
jurisdiction. Subject to Clause 30.3, the courts of
England shall have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this
Agreement.
|
|
30.3
|
Choice of forum for the
exclusive benefit of the Creditor Parties. Clause 30.2
is for the exclusive benefit of the Creditor Parties, each of which
reserves the right:
|
|
(a)
|
to
commence proceedings in relation to any matter which arises out of or in
connection with this Agreement in the courts of any country other than
England and which have or claim jurisdiction to that matter;
and
|
|
(b)
|
to
commence such proceedings in the courts of any such country or countries
concurrently with or in addition to proceedings in England or without
commencing proceedings in England.
|
No
Borrower shall commence any proceedings in any country other than England in
relation to a matter which arises out of or in connection with this
Agreement.
|
30.4
|
Process
agent. The Borrower irrevocably appoints Curzon Maritime
Ltd. at its office for the time being, presently at 00/00 Xxxxxxxx Xxxxxx,
Xx. Xxxxx House, London EC3N 1DJ, England, to act as its agent to receive
and accept on its behalf any process or other document relating to any
proceedings in the English courts which are connected with this
Agreement.
|
|
30.5
|
Creditor Party rights
unaffected. Nothing in this Clause 30 shall exclude or
limit any right which any Creditor Party may have (whether under the law
of any country, an international convention or otherwise) with regard to
the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
|
|
30.6
|
Meaning of
“proceedings”. In this Clause 30, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
|
AS WITNESS the hands of the
duly authorised officers or attorneys of the parties the day and year first
before written.
LENDERS
AND COMMITMENTS
|
Lender
|
Lending
Office
|
Commitment
($)
|
Percentage
of
Total
Commitments
(%)
|
|
HSH
Nordbank XX
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
00
00000
Xxxxxxx
Xxxxxxx
Fax
No: x(00) 00 00 00 00000
|
00,000,000
|
25.7
|
|
DnB
NOR Bank ASA
|
00
Xx. Xxxxxxx’x Xxxx
Xxxxxx
XX0X 0XX
Xxxxxxx
Fax
No: 0000 000 000 0000
|
00,000,000
|
21.5
|
|
Alpha
Bank A.E.
|
Xxxx
Xxxxxxx
00
000
00 Xxxxxxx
Xxxxxx
Fax
No: x00 000 000 0000
|
00,000,000
|
17.1
|
|
National
Bank of Greece S.A.
|
Bouboulinas
2 &
Xxxx
Xxxxxxx
000
00 Xxxxxxx
Fax
No: x00 000 000 0000
|
00,000,000
|
17.1
|
|
Piraeus
Bank A.E.
|
47-49
Akti Miaouli
185
36 Piraeus
Fax
No: x00 000 000 0000
|
00,000,000
|
18.6
|
DRAWDOWN
NOTICE
|
To:
|
HSH
Norbank XX
|
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
00
|
|
|
00000
Xxxxxxx
|
|
|
Xxxxxxx
|
| Attention: Loans Administration |
2008
|
DRAWDOWN
NOTICE
|
1
|
We
refer to the loan agreement (the “Loan Agreement”) dated
19 March 2008 and made between us, as Borrower, the Lenders referred to
therein, HSH Nordbank AG as Swap Bank, you as Bookrunner, Facility Agent,
Mandated Lead Arranger, Security Trustee and DnB NOR Bank ASA, London as
Co-Arranger in connection with revolving credit and term loan facilities
of up to US$350,000,000 in aggregate. Terms defined in the Loan
Agreement have their defined meanings when used in this Drawdown
Notice.
|
|
2
|
We
request to borrow an Advance under Tranche [ ] as
follows:
|
|
(a)
|
Amount:
US$[ ];
|
|
(b)
|
Drawdown
Date: [ ];
|
|
(c)
|
Duration
of the first Interest Period shall be
[ ]
months;
|
|
(d)
|
Payment
instructions : account of
[ ]
and numbered
[ ]
with
[ ]
of
[ ].
|
|
3
|
We
represent and warrant that:
|
|
(a)
|
the
representations and warranties in Clause 10 of the Loan Agreement would
remain true and not misleading if repeated on the date of this notice with
reference to the circumstances now existing;
and
|
|
(b)
|
no
Event of Default or Potential Event of Default has occurred or will result
from the borrowing of the Loan.
|
|
4
|
This
notice cannot be revoked without the prior consent of the Majority
Lenders.
|
|
5
|
[We
authorise you to deduct any facility fees referred to in Clause 20.1 from
the amount of the Advance].
|
________________________________
Attorney-in-Fact
for and
on behalf of
CONDITION
PRECEDENT DOCUMENTS
PART
A
The
following are the documents referred to in Clause 9.1(b) required before the
Drawdown Date of the first Advance of Tranche A.
|
1
|
A
duly executed original of each of:
|
|
(a)
|
this
Agreement;
|
|
(b)
|
the
Agency and Trust Deed;
|
|
(c)
|
the
Master Agreement;
|
|
(d)
|
the
Master Agreement Assignment;
|
|
(e)
|
the
Fee Letter;
|
|
(f)
|
the
Guarantees to be entered into by the Existing
Owners;
|
|
(g)
|
the
Retention Account Pledge; and
|
|
(h)
|
the
Swap Account Pledge.
|
|
2
|
Copies
of the certificate of limited partnership (in the case of the Borrower),
the certificate of incorporation (in the case of each Existing Owner) and
the constitutional documents of the Borrower and each Existing
Owner.
|
|
3
|
Copies
of resolutions of the directors of the Borrower and the directors and
shareholders of each Existing Owner authorising the execution of each of
the Finance Documents to which the Borrower or that Owner is a party and,
in the case of the Borrower, authorising named officers to give the
Drawdown Notices and other notices under this
Agreement.
|
|
4
|
The
original of any power of attorney under which any Finance Document is
executed on behalf of the Borrower or an Existing
Owner.
|
|
5
|
Copies
of all consents which the Borrower or any Existing Owner requires to enter
into, or make any payment under, any Finance
Document.
|
|
6
|
The
originals of any mandates or other documents required in connection with
the opening or operation of each Earnings Account relative to an Existing
Ship and the Retention Account and the Swap
Account.
|
|
7
|
Evidence
satisfactory to the Facility Agent that each Existing Owner is a direct or
indirect wholly-owned subsidiary of the
Borrower.
|
|
8
|
Copies
of all the Management Agreements of the Existing
Ships.
|
|
9
|
Copies
of all the Existing Charters duly executed by the parties
thereto.
|
|
10
|
A
copy of the Partnership Agreement duly executed by the parties
thereto.
|
|
11
|
All
documentation required by each Creditor Party in relation to the Borrower
and any Security Party pursuant to that Creditor Party’s “know your
customer” requirements.
|
|
12
|
Documentary
evidence that the agent for service of process named in Clause 30 has
accepted its appointment.
|
|
13
|
Favourable
legal opinions from lawyers appointed by the Facility Agent on such
matters concerning the laws of the Xxxxxxxx Islands, Liberia and such
other relevant jurisdictions as the Facility Agent may
requires.
|
|
14
|
If
the Facility Agent so requires, in respect of any of the documents
referred to above, a certified English translation prepared by a
translator approved by the Facility
Agent.
|
PART
B
The
following are the documents referred to in Clause 9.1(c) required before the
Drawdown Date of each Advance under Tranche A and Tranche B.
In Part B
of Schedule 3, the following definitions shall have the following
meanings:
“Relevant Owner” means the
Owner of the Relevant Ship; and
“Relevant Ship” means, in
relation to each Advance under Tranche A and Tranche B, the Tranche A Ship and
Tranche B Ship which is to act as security for such Advance.
|
1
|
Copies
of resolutions of the shareholders and directors of the Relevant Owner and
the Borrower authorising the execution of each of the Finance Documents to
which such Owner is a party and, in the case of the Borrower, approving
the borrowing of the relevant Advance and authorising named directors or
attorneys to give the Drawdown Notices and other notices under this
Agreement.
|
|
2
|
The
original of any power of attorney under which any Finance Document is
executed on behalf of the Relevant
Owner.
|
|
3
|
Copies
of all consents which the Relevant Owner or the Borrower requires to enter
into, or make any payment under, any Finance
Document.
|
|
4
|
A
duly executed original of the Guarantee of the Relevant Owner and of the
Mortgage (and, if applicable, the Deed of Covenant) and the General
Assignment relative to the Relevant Ship, the Earnings Account Pledge, the
Management Agreement Assignment and of each document to be delivered
pursuant to each such Finance
Document.
|
|
5
|
If
applicable, a duly executed original of the Charterparty Assignment in
respect of the Existing Charter (in the case of each Tranche A Ship) of
the Relevant Ship and of each document to be delivered pursuant to each
such Finance Document.
|
|
6
|
Evidence
satisfactory to the Facility Agent that the Relevant Owner is a direct or
indirect wholly-owned subsidiary of the
Borrower.
|
|
7
|
The
originals of any documents required in connection with the opening of the
Earnings Account in respect of the Relevant
Ship.
|
|
8
|
Documentary
evidence that:
|
|
(a)
|
the
Relevant Ship is registered in the ownership of the Relevant Owner under
an Approved Flag;
|
|
(b)
|
the
Relevant Ship is in the absolute and unencumbered ownership of the
Relevant Owner save as contemplated by the Finance
Documents;
|
|
(c)
|
the
Relevant Ship maintains the highest available class with an Approved
Classification Society as the Facility Agent may approve free of all
overdue recommendations and conditions of such classification
society;
|
|
(d)
|
the
Mortgage relating to the Relevant Ship has been duly registered or
recorded against the Relevant Ship as a valid first preferred ship
mortgage in accordance with the laws of the relevant Approved Flag State;
and
|
|
(e)
|
the
Relevant Ship is insured in accordance with the provisions of this
Agreement and all requirements therein in respect of insurances have been
complied with.
|
|
9
|
A
copy of the Management Agreement and a duly executed original of the
Approved Manager’s Undertaking in relation to the Relevant
Ship.
|
|
10
|
Copies
of:
|
|
(a)
|
the
document of compliance (DOC) and safety management certificate
(SMC) referred to in paragraph (a) of the definition of the ISM Code
Documentation in respect of the Relevant Ship and the Approved Manager
certified as true and in effect by the Relevant Owner;
and
|
|
(b)
|
the
ISPS Code Documentation in respect of the Relevant Ship and the Relevant
Owner certified as true and in effect by the Relevant
Owner.
|
|
11
|
Two
valuations (at the cost of the Borrowers) of the Relevant Ship, addressed
to the Facility Agent, stated to be for the purposes of this Agreement and
dated not earlier than 4 weeks before the Drawdown Date relative to the
relevant Advance, each from an Approved Broker (such valuations to be made
in accordance with Clause 15.4).
|
|
12
|
A
survey report in respect of the Relevant Ship prepared (at the cost of the
Borrower) by an independent marine surveyor appointed by the Facility
Agent dated no later than 20 days prior to the Drawdown Date of the
relevant Advance in form, scope and substance satisfactory to the Facility
Agent and its technical advisers.
|
|
13
|
At
the cost of the Borrower, a favourable opinion from an independent
insurance consultant acceptable to the Lenders on such matters relating to
the insurances for the Relevant Ship as the Facility Agent may
require.
|
|
14
|
Favourable
legal opinions from lawyers appointed by the Lender on such matters
concerning the laws of the Approved Flag State in which the Relevant Ship
is registered and such other relevant jurisdictions as the Facility Agent
may require.
|
|
15
|
If
the Facility Agent so requires, in respect of any of the documents
referred to above, a certified English translation prepared by a
translator approved by the Facility
Agent.
|
PART
C
The
following are the documents referred to in Clause 9.1(d) required before the
Drawdown Date of each Advance under Tranche C.
In Part C
of Schedule 3, the following definitions shall have the following
meanings:
“Relevant Owner” means the
owner of the Relevant Ship; and
“Relevant Ship” means, in
relation to each Advance under Tranche C, the Additional Ship which is to act as
security for such Advance.
|
1
|
Copies
of resolutions of the shareholders and directors of each Relevant Owner
and the Borrower authorising the execution of each of the Finance
Documents to which such Owner is a party and, in the case of the Borrower,
approving the borrowing of the relevant Advance and authorising named
directors or attorneys to give the Drawdown Notices and other notices
under this Agreement.
|
|
2
|
The
original of any power of attorney under which any Finance Document is
executed on behalf of the Relevant
Owner.
|
|
3
|
Copies
of all consents which each Relevant Owner or the Borrower requires to
enter into, or make any payment under, any Finance
Document.
|
|
4
|
A
duly executed original of the Guarantee of the Relevant Owner and of the
Mortgage and the General Assignment relative to the Relevant Ship, the
Owner’s Earnings Account Pledge and of each document to be delivered
pursuant to each such Finance
Document.
|
|
5
|
If
applicable, a duly executed original of the Charterparty Assignment or the
Bareboat Charter Security Agreement in respect of the Relevant Ship and of
each document to be delivered pursuant to each such Finance
Document.
|
|
6
|
Evidence
satisfactory to the Facility Agent that the Relevant Owner is a direct or
indirect wholly-owned subsidiary of the
Borrower.
|
|
7
|
The
originals of any documents required in connection with the opening of the
Earnings Account in respect of the Relevant
Ship.
|
|
8
|
Documentary
evidence that:
|
|
(a)
|
the
Relevant Ship is registered in the ownership of the Relevant Owner under
an Approved Flag;
|
|
(b)
|
the
Relevant Ship is in the absolute and unencumbered ownership of the
Relevant Owner save as contemplated by the Finance
Documents;
|
|
(c)
|
the
Relevant Ship maintains the highest available class with an Approved
Classification Society as the Facility Agent may approve free of all
overdue recommendations and conditions of such classification
society;
|
|
(d)
|
the
Mortgage relating to the Relevant Ship has been duly registered or
recorded against the Relevant Ship as a valid first preferred ship
mortgage in accordance with the laws of the relevant Approved Flag State;
and
|
|
(e)
|
the
Relevant Ship is insured in accordance with the provisions of this
Agreement and all requirements therein in respect of insurances have been
complied with.
|
|
9
|
A
copy of the Management Agreement and a duly executed original of the
Approved Manager’s Undertaking in relation to the Relevant
Ship.
|
|
10
|
Copies
of:
|
|
(a)
|
the
document of compliance (DOC) and safety management certificate
(SMC) referred to in paragraph (a) of the definition of the ISM Code
Documentation in respect of the Relevant Ship and the Approved Manager
certified as true and in effect by the Relevant Owner;
and
|
|
(b)
|
the
ISPS Code Documentation in respect of the Relevant Ship and the Relevant
Owner certified as true and in effect by the Relevant
Owner.
|
|
11
|
Two
valuations (at the cost of the Borrowers) of the Relevant Ship, addressed
to the Facility Agent, stated to be for the purposes of this Agreement and
dated not earlier than 4 weeks before the Drawdown Date relative to the
relevant Advance, each from an Approved Broker (such valuations to be made
in accordance with Clause 15.4).
|
|
12
|
A
survey report in respect of the Relevant Ship prepared (at the cost of the
Borrower) by an independent marine surveyor appointed by the Facility
Agent dated no later than 20 days prior to the Drawdown Date of the
relevant Advance in form, scope and substance satisfactory to the Facility
Agent and its technical advisers.
|
|
13
|
At
the cost of the Borrower, a favourable opinion from an independent
insurance consultant acceptable to the Lenders on such matters relating to
the insurances for each Relevant Ship as the Facility Agent may
require.
|
|
14
|
Favourable
legal opinions from lawyers appointed by the Lender on such matters
concerning the laws of the Approved Flag State in which the Relevant Ship
is registered and such other relevant jurisdictions as the Facility Agent
may require.
|
|
15
|
If
the Facility Agent so requires, in respect of any of the documents
referred to above, a certified English translation prepared by a
translator approved by the Facility
Agent.
|
Every
copy document delivered under this Schedule shall be certified as a true and up
to date copy by a director or the secretary (or equivalent officer) of the
Borrower.
TRANSFER
CERTIFICATE
The
Transferor and the Transferee accept exclusive responsibility for ensuring that
this Certificate and the transaction to which it relates comply with all legal
and regulatory requirements applicable to them respectively.
|
To:
|
HSH NORDBANK AG for
itself and for and on behalf of the Borrower, each Security Party, the
Security Trustee and each Lender, as defined in the Loan Agreement
referred to below.
|
[ ]
200[ ]
|
1
|
This
Certificate relates to a Loan Agreement (the “Loan Agreement”) dated
19 March 2008 and made between (1) Capital Product Partners L.P. (the
“Borrower”), (2)
the banks and financial institutions named therein, (3) HSH Nordbank AG as
Swap Bank (4) HSH Nordbank AG as Bookrunner, Facility Agent, Mandated Lead
Arranger and Security Trustee and (5) DnB NOR Bank ASA as Co-Arranger and,
for revolving credit and term loan facilities of up to US$350,000,000 in
aggregate.
|
|
2
|
In
this Certificate:
|
|
“the Relevant Parties”
means the Facility Agent, the Borrower, [each Security Party], the
Security Trustee, and each Lender;
|
|
“the Transferor” means
[full name] of [lending office];
|
|
“the Transferee” means
[full name] of [lending office].
|
|
Terms
defined in the Loan Agreement shall, unless the contrary intention
appears, have the same meanings when used in this
Certificate.
|
|
3
|
The
effective date of this Certificate is .........200[ ] Provided that this
Certificate shall not come into effect unless it is signed by the Facility
Agent on or before that date.
|
|
4
|
The
Transferor assigns to the Transferee absolutely all rights and interests
(present, future or contingent) which the Transferor has as Lender under
or by virtue of the Loan Agreement and every other Finance Document in
relation to [ ] per cent. of the
Contribution outstanding to the Transferor (or its predecessors in title)
which is set out below:
|
|
Contribution
|
Amount
transferred
|
|
|
5
|
By
virtue of this Transfer Certificate and Clause 26 of the Loan Agreement,
the Transferor is discharged [entirely from its Commitment which amounts
to $[ ]] [from
[ ] per cent. of its Commitment, which
percentage represents $[ ]] and the
Transferee acquires a Commitment of
$[ ].
|
|
6
|
The
Transferee undertakes with the Transferor and each of the Relevant Parties
that the Transferee will observe and perform all the obligations under the
Finance Documents which Clause 26 of the Loan Agreement provides will
become binding on it upon this Certificate taking
effect.
|
|
7
|
The
Facility Agent, at the request of the Transferee (which request is hereby
made) accepts, for the Facility Agent itself and for and on behalf of
every other Relevant Party, this Certificate as a Transfer Certificate
taking effect in accordance with Clause 26 of the Loan
Agreement.
|
|
8
|
The
Transferor:
|
|
(a)
|
warrants
to the Transferee and each Relevant
Party:
|
|
|
(i)
|
that
the Transferor has full capacity to enter into this transaction and has
taken all corporate action and obtained all consents which are in
connection with this transaction;
and
|
|
|
(ii)
|
that
this Certificate is valid and binding as regards the
Transferor;
|
|
(b)
|
warrants
to the Transferee that the Transferor is absolutely entitled, free of
encumbrances, to all the rights and interests covered by the assignment in
paragraph 4 above;
|
|
(c)
|
undertakes
with the Transferee that the Transferor will, at its own expense, execute
any documents which the Transferee reasonably requests for perfecting in
any relevant jurisdiction the Transferee’s title under this Certificate or
for a similar purpose.
|
|
9
|
The
Transferee:
|
|
(a)
|
confirms
that it has received a copy of the Loan Agreement and each other Finance
Document;
|
|
(b)
|
agrees
that it will have no rights of recourse on any ground against either the
Transferor, the Facility Agent, the Security Trustee, any Lender in the
event that:
|
|
|
(i)
|
the
Finance Documents prove to be invalid or
ineffective,
|
|
|
(ii)
|
the
Borrower or any Security Party fails to observe or perform its
obligations, or to discharge its liabilities, under the Finance
Documents;
|
|
|
(iii)
|
it
proves impossible to realise any asset covered by a Security Interest
created by a Finance Document, or the proceeds of such assets are
insufficient to discharge the liabilities of the Borrower or Security
Party under the Finance Documents;
|
|
(c)
|
agrees
that it will have no rights of recourse on any ground against the Facility
Agent, the Security Trustee or any Lender in the event that this
Certificate proves to be invalid or
ineffective;
|
|
(d)
|
warrants
to the Transferor and each Relevant Party (i) that it has full capacity to
enter into this transaction and has taken all corporate action and
obtained all official consents which it needs to take or obtain in
connection with this transaction; and (ii) that this Certificate is valid
and binding as regards the Transferee;
and
|
|
(e)
|
confirms
the accuracy of the administrative details set out below regarding the
Transferee.
|
|
10
|
The
Transferor and the Transferee each undertake with the Facility Agent and
the Security Trustee severally, on demand, fully to indemnify the Facility
Agent and/or the Security Trustee in respect of any claim, proceeding,
liability or expense (including all legal expenses) which they or either
of them may incur in connection with this Certificate or any matter
arising out of it, except such as are shown to have been mainly and
directly caused by the gross and culpable negligence or dishonesty of the
Facility Agent’s or the Security Trustee’s own officers or
employees.
|
|
11
|
The
Transferee shall repay to the Transferor on demand so much of any sum paid
by the Transferor under paragraph 10 above as exceeds one-half of the
amount demanded by the Facility Agent or the Security Trustee in respect
of a claim, proceeding, liability or expense which was not reasonably
foreseeable at the date of this Certificate; but nothing in this paragraph
shall affect the liability of each of the Transferor and the Transferee to
the Facility Agent or the Security Trustee for the full amount demanded by
it.
|
|
[Name
of Transferor]
|
[Name
of Transferee]
|
|
By:
|
By:
|
|
Date:
|
Date:
|
Facility
Agent
Signed
for itself and for and on behalf of itself
as
Facility Agent and for every other Relevant Party
HSH
Nordbank AG
By:
Date:
Administrative
Details of Transferee
Name of
Transferee:
Lending
Office:
Contact
Person
(Loan
Administration Department):
Telephone:
Telex:
Fax:
Contact
Person
(Credit
Administration Department):
Telephone:
Telex:
Fax:
Account
for payments:
|
Note:
|
This
Transfer Certificate alone may not be sufficient to transfer a
proportionate share of the Transferor’s interest in the security
constituted by the Finance Documents in the Transferor’s or Transferee’s
jurisdiction. It is the responsibility of each Lender to
ascertain whether any other documents are required for this
purpose.
|
DESIGNATION
NOTICE
To: HSH
Norbank XX
Xxxxxxx-Xxxxxxxxx-Xxxxx
00
00000
Xxxxxxx
Xxxxxxx
[●]
Dear
Sirs
Loan
Agreement dated 19 March 2008 made between (inter alia) (i) ourselves as
Borrower, (ii) the Lenders, (iii) yourselves as Swap Bank, Bookrunner, Mandated
Lead Arranger, Facility Agent and Security Trustee and (iv) DnB NOR Bank ASA as
Co-Arranger in respect of revolving credit and term loan facilities of up to
US$350,000,000 in aggregate (the “Loan Agreement”)
We refer
to:
|
1
|
the
Loan Agreement;
|
|
2
|
the
Master Agreement dated [●] March 2008 made between ourselves and HSH
Nordbank AG; and
|
|
3
|
a
Confirmation delivered pursuant to the said Master Agreement dated [●]
March 2008 and addressed by HSH Nordbank AG to
us.
|
In
accordance with the terms of the Loan Agreement, we hereby give you notice of
the said Confirmation and hereby confirm that the Transaction evidenced by it
will be designated as a “Designated Transaction” for the purposes of the Loan
Agreement and the Finance Documents.
Yours
faithfully,
FORM
OF COMPLIANCE CERTIFICATE
To:
HSH NORDBANK XX
Xxxxxxx-Xxxxxxxxx-Xxxxx
00
00000
Xxxxxxx
Xxxxxxx
Dated:
[●]
Dear
Sirs
USD
350,000,000 Loan Agreement
dated 19 March 2008 (the
“Agreement”)
|
1
|
We
refer to the Agreement. This is a Compliance Certificate and attached
hereto are the calculations which will provide evidence of compliance.
Terms defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this Compliance
Certificate.
|
|
2
|
We
refer to clauses 12.5 and 15.1 of the Agreement and hereby certify
that:
|
(a) Leverage Ratio
Requirement: Leverage
Ratio of not more than 72.50%.
Satisfied [YES] :
[NO]
(b) Minimum Liquidity
Requirement: maintain
on a consolidated basis liquidity in a minimum amount determined in accordance
with Clause 12.5(c) of the Agreement.
Satisfied
[YES] : [NO]
(c) Interest Coverage
Requirement: maintain
a ratio of EBITDA to Net Interest Expenses on a trailing 4-quarter basis of not
less than 2.00 to 1.00.
Satisfied
[YES] : [NO]
(d) Collateral
Maintenance
Requirement: Market
Value of the Ships subject to a Mortgage is not less than 125% of the
Loan.
Satisfied
[YES] : [NO]
|
3
|
We
confirm that no Event of Default is continuing and that no Event of
Default would occur out of the distribution or dividend [made][to be
made].*
|
|
…..................
|
|
|
Chief
Financial Officer
|
|
…..................
for and
on behalf of
[name of auditors of the
Company]**
_____________________
|
*
|
If
this statement cannot be made, the certificate should identify any Event
of Default that is continuing and the steps, if any, being taken to remedy
it.
|
|
**
|
Only
applicable if the Compliance Certificate accompanies the audited financial
statements and is to be signed by the auditors. To be agreed
with the Company’s auditors prior to signing the
Agreement.
|
EXECUTION
PAGES
|
BORROWER
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
CAPITAL
PRODUCT
|
)
|
|
|
PARTNERS
L.P.
|
)
|
|
|
LENDERS
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
HSH
NORDBANK AG
|
)
|
|
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
DNB
NOR BANK ASA
|
)
|
|
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
ALPHA
BANK A.E.
|
)
|
|
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
NATIONAL
BANK OF
|
)
|
|
|
GREECE
S.A.
|
)
|
|
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
PIRAEUS
BANK A.E.
|
)
|
|
|
SWAP
BANK
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
HSH
NORDBANK AG
|
)
|
|
|
BOOKRUNNER
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
HSH
NORDBANK AG
|
)
|
|
|
MANDATED
LEAD ARRANGER
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
HSH
NORDBANK AG
|
)
|
|
|
FACILITY
AGENT
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
HSH
NORDBANK AG
|
)
|
|
|
SECURITY
TRUSTEE
|
||
|
SIGNED
by
|
)
|
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for
and on behalf of
|
)
|
|
|
HSH
NORDBANK AG
|
)
|
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CO-ARRANGER
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||
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SIGNED
by
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)
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for
and on behalf of
|
)
|
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DNB
NOR BANK ASA
|
)
|
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Witness
to all the above
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)
|
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Signatures:
|
)
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|
Name:
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||
|
Address:
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85
