EXHIBIT 10.8
EFF-SHIPPING LIMITED
(as lender)
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CROWN CRUISES OF PANAMA, INC.
(as borrower)
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LOAN AGREEMENT
RE USD24,480,000 SELLER'S CREDIT
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Temperley
▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Ref: GFS/243417
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INDEX OF CONTENTS
CLAUSE SUBJECT PAGE
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1. PURPOSE AND DEFINITIONS..........................................1
2. THE LENDER'S COMMITMENT..........................................8
3. AVAILABILITY.....................................................8
4. INTEREST.........................................................9
5. REPAYMENT.......................................................11
6. COMPULSORY AND VOLUNTARY PREPAYMENT.............................11
7. ARRANGEMENT FEE.................................................13
8. INDEMNITY.......................................................13
9. PAYMENTS........................................................15
10. APPLICATION OF MONEYS...........................................17
11. DEFAULT.........................................................20
12. SECURITY........................................................22
13. REPRESENTATIONS AND WARRANTIES..................................23
14. COVENANTS.......................................................25
15. SET-OFF.........................................................30
16. ASSIGNMENT AND PARTICIPATION....................................30
17. MISCELLANEOUS...................................................31
18. NOTICES.........................................................32
19. PROPER LAW AND JURISDICTION.....................................32
SCHEDULE A : CONDITIONS PRECEDENT............................................33
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SCHEDULE B: FINANCIAL RATIOS................................................36
APPENDIX I : FORM OF UTILIZATION NOTICE......................................38
APPENDIX II : FORM OF COMPLIANCE CERTIFICATE..................................39
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THIS AGREEMENT is made the 24th day of January 2000
BETWEEN:-
(1) THE LENDER (as hereinafter defined); and
(2) THE BORROWER (as hereinafter defined).
IT IS HEREBY AGREED as follows:-
1. PURPOSE AND DEFINITIONS
1.1 This agreement contains the terms and conditions upon which the Lender
will make available to the Borrower a secured loan of twenty four
million four hundred and eighty thousand United States Dollars
(USD24,480,000).
1.2 In this agreement the following words and expressions shall have the
following meanings:-
"AGENT"
means ▇▇▇▇▇▇ Bank Plc, a company incorporated under the laws of Finland
acting through its London branch having its principal place of business
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as agent for
the Banks;
"BANKS"
means ▇▇▇▇▇▇ Bank Plc, Christiania Bank og Kreditkasse ASA and
Skandinaviska Enskilda ▇▇▇▇▇▇ ▇▇ (publ);
"BORROWED MONEY"
means Indebtedness incurred in respect of (i) money borrowed or raised,
(ii) any bond, note, loan stock, debenture or similar instrument, (iii)
acceptance or documentary credit facilities, (iv) deferred payments for
assets or services acquired other than for provisions, bunkers, spare
parts or services acquired in the ordinary course of, and incidental
to, the operation of the Vessel, (v) rental payments under and any
amounts payable on termination of leases (whether in respect of ships,
land, machinery, equipment or otherwise) entered into primarily as a
method of raising finance or of financing the acquisition of the asset
leased, (vi) guarantees, bonds, stand-by letters of
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credit or other instruments issued in connection with the performance
of contracts and (vii) guarantees or other assurances against financial
loss in respect of Indebtedness of any person, firm or company falling
within any of (i) to (vi) above;
"BORROWER"
means Crown Cruises of Panama, Inc., a company incorporated under the
laws of Panama with its registered office at ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & Calle ▇▇. ▇▇, ▇▇▇▇ ▇, ▇▇ &
▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama;
"BRIDGE LOAN FACILITY"
means the loan of six million seven hundred and twenty thousand United
States Dollars (USD6,720,000) made available by the Banks to the
Borrower under the Bridge Loan Facility Agreement;
"BRIDGE LOAN FACILITY AGREEMENT"
means the agreement of even date herewith made between (1) the Banks,
(2) the Agent as agent for the Banks, (3) the Borrower and (4) the
Trustee as security trustee for the Banks in respect of the Bridge Loan
Facility;
"BRIDGE LOAN SECURITIES"
means the securities provided or to be provided to the Agent pursuant
to the Bridge Loan Facility Agreement as security for the Bridge Loan
Facility;
"BUSINESS DAY"
means any day on which banks and foreign exchange markets in Helsinki,
Oslo, London and New York are open for the transaction of business of
the nature contemplated in this agreement;
"CHARTER"
means the space charter in respect of the Vessel made or to be made
between the Borrower as owner and the Charterer as charterer;
"CHARTERER"
means Crown Cruises Limited, a company incorporated under the laws of
Bermuda
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with its registered office at c/o Francis & Forest, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇;
"DRAWDOWN DATE"
means the date on which the Loan is advanced pursuant to clause 3
hereof;
"EARNINGS ACCOUNT"
means the account in the name of the Borrower at the Agent's New York
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇;
"EARNINGS ASSIGNMENT"
means the assignment executed pursuant to clause 12.1(C) hereof;
"ENCUMBRANCE"
means any mortgage, charge, pledge, lien, assignment, hypothecation,
title retention, preferential right or trust arrangement and any other
security agreement or arrangement;
"EVENT OF DEFAULT"
means any of the events or circumstances specified in clause 11.1
hereof;
"GAAP"
means accounting principles generally accepted in the United States of
America and consistently applied;
"GUARANTOR"
means Commodore Holdings Limited, a company incorporated under the laws
of Bermuda with its registered office at c/o Francis & Forest, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇;
"INDEBTEDNESS"
means any obligation for the payment or repayment of money, whether as
principal or as surety and whether present or future, actual or
contingent;
"INSURANCE ASSIGNMENT"
means the assignment executed pursuant to clause 12.1(B) hereof;
"INTEREST PERIOD"
means any period determined in accordance with the provisions of clause
4.1 hereof
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for the calculation of interest on the Loan or any relevant part
thereof;
"LENDER"
means EFF-Shipping Limited, a company incorporated under the laws of
the Cayman Islands with its registered office at the offices of Huntlaw
Corporate Services Ltd., The Huntlaw Building, P O Box 1350, ▇▇▇▇▇▇
Town, Grand Cayman, Cayman Islands;
"LOAN"
means twenty four million four hundred and eighty thousand United
States Dollars (USD24,480,000) or, where the context so requires, the
aggregate amount thereof from time to time outstanding;
"MANAGEMENT AGREEMENT"
means the agreement for the management of the Vessel made or to be made
between the Borrower and the Manager;
"MANAGER"
means New Commodore Cruise Lines Limited, a company incorporated under
the laws of Bermuda with its registered office at c/o Francis & Forest,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇;
"MARGIN"
means four per cent (4%) per annum;
"MOA"
means the agreement for the sale and purchase of the Vessel made or to
be made between the Seller and the Borrower;
"MORTGAGE"
means the third Panamanian naval mortgage over the Vessel executed
pursuant to clause 12.1(A) hereof;
"PERMITTED LIENS"
means liens for current crews' wages and salvage and liens incurred in
the ordinary course of trading the Vessel up to an aggregate amount at
any time not exceeding five
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per cent (5%) of the charter-free sale value of the Vessel (such market
value to be conclusively determined as the average of the latest three
(3) valuations obtained by the Agent as provided in clause 8.2 of The
Revolving Loan Facility Agreement);
"REFERENCE BANKS"
means the Banks;
"REPAYMENT INSTALMENTS"
means the instalments of principal for repayment of the Loan specified
in clause 5.1 hereof and "Repayment Instalment" means any one of them;
"REVOLVING LOAN FACILITY"
means the revolving loan facility of up to but not exceeding forty five
million United States Dollars (USD45,000,000) at any one time made
available by the Banks to the Borrower under the Revolving Loan
Facility Agreement;
"REVOLVING LOAN FACILITY AGREEMENT"
means the agreement of even date herewith made between (1) the Banks,
(2) the Agent as agent for the Banks, (3) the Borrower and (4) the
Trustee as security trustee for the Banks in respect of the Revolving
Loan Facility;
"REVOLVING LOAN SECURITIES"
means the securities provided or to be provided to the Agent pursuant
to the Revolving Loan Facility Agreement as security for the Revolving
Loan Facility;
"SECURITY DOCUMENTS"
means the documents executed pursuant to clause 12.1 hereof and any
other document or documents from time to time providing and/or
evidencing and/or constituting security in respect of the Loan;
"SECURITY PARTIES"
means the Borrower, the Guarantor and the Manager and any other party
to any of the Security Documents from time to time (other than the
Lender, the Seller, the Banks, the Agent and the Trustee) and "Security
Party" means any one of them;
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"SELLER"
means Crown Dynasty Inc., a company incorporated under the laws of
Panama with its registered office at Vallarino, Vallarino &
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, 20th Floor, Banco Continental Building, ▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇;
"SUB-CHARTER"
means the space sub-charter of the Vessel made or to be made between
the Charterer as disponent owner and the Sub-Charterer as charterer on
back to back terms with the Charter;
"SUB-CHARTERER"
means ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, Inc. doing business as Apple Vacations, a
company incorporated under the laws of Pennsylvania with its registered
office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇.;
"SUBJECT DOCUMENTS"
means this agreement, the Security Documents, the MOA, the Charter, the
Sub-Charter, the Management Agreement, the Revolving Loan Facility
Agreement, the Revolving Loan Securities, the Bridge Loan Facility
Agreement, the Bridge Loan Securities and any and all documents
executed pursuant to any one or more of these documents;
"TOTAL LOSS"
means:-
(i) actual or constructive or compromised or agreed or arranged
total loss of the Vessel; or
(ii) requisition for title or other compulsory acquisition of the
Vessel otherwise than by requisition for hire; or
(iii) capture, seizure, arrest, detention or confiscation of the
Vessel by any government or by persons acting or purporting to
act on behalf of any government unless the Vessel is released
and restored to the Borrower from such capture, seizure,
arrest or detention within thirty (30) days after the
occurrence thereof;
"TRUSTEE"
means ▇▇▇▇▇▇ Bank Plc, a company incorporated under the laws of Finland
acting through its London branch having its principal place of business
at 19 ▇▇▇▇▇▇ ▇▇▇▇
- ▇▇ -
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as security trustee for the
Banks;
"UNITED STATES DOLLARS" and "USD"
mean the lawful currency of the United States of America; and
"VESSEL"
means the motor vessel named "Crown Dynasty" now registered under
Panamanian flag in the ownership of the Seller which is to remain
registered under Panamanian flag in the ownership of the Borrower
pursuant to the MOA.
1.3 References to any document shall be construed to mean that document as
amended and/or varied and/or supplemented from time to time with the
agreement of the relevant parties and (where such consent is required
by the terms of this agreement or the relevant document) with the
consent of the Agent and/or the Banks and/or the Trustee and/or the
Lender.
1.4 Clause headings are inserted for convenience of reference only and
shall be ignored in the interpretation of this agreement.
2. THE LENDER'S COMMITMENT
2.1 In reliance upon the representations and warranties contained in clause
13 hereof and in the Security Documents and subject to the terms and
conditions of this agreement the Lender will make the Loan available to
the Borrower for the purpose of financing (in part) the purchase of the
Vessel by the Borrower pursuant to the MOA.
3. AVAILABILITY
3.1 The Loan shall be advanced in one amount and applied in accordance with
clause 2.1 hereof provided that:-
(A) all items specified in schedule A hereto have been received by
the Lender and are in form and substance satisfactory to the
Lender;
(B) no Event of Default and no event which with the giving of
notice and/or lapse
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of time would constitute an Event of Default has occurred;
(C) not less than four (4) Business Days prior to the date upon
which the Borrower requires the Loan to be advanced the Lender
has received a written notice from the Borrower in the form
set out in appendix I hereto; and
(D) the obligation of the Lender to make the Loan available to the
Borrower shall expire on 31 January 2000 if the Loan is not
advanced on or before that date.
3.2 The Lender may in its absolute discretion allow the Loan to be advanced
notwithstanding that it has not received all the items specified in
schedule A hereto and in this event the Borrower hereby covenants to
procure the delivery of all the missing items to the Lender within
thirty (30) days after the Drawdown Date.
4. INTEREST
4.1 The Borrower shall pay interest on the Loan from the Drawdown Date for
each successive Interest Period which shall, subject to clauses 4.3 and
6.2 hereof, be either one (1), three (3) or six (6) months at the
option of the Borrower provided always that:-
(A) the Borrower shall exercise the said option by notice in
writing to the Lender not later than three (3) Business Days
prior to the commencement of each Interest Period failing
which the Borrower shall be deemed to have opted for an
Interest Period of six (6) months;
(B) if the relevant funds are not available to the Lender for an
Interest Period of the length opted for (or deemed to be opted
for) by the Borrower the Lender shall be entitled to determine
conclusively the length of that Interest Period;
(C) if an Interest Period will expire after the due date for
payment of the next following Repayment Instalment there shall
be a separate Interest Period in respect of that Repayment
Instalment expiring on the due date for payment thereof and
the interest rate relating to that Repayment Instalment shall
be separately fixed accordingly; and
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(D) if an Interest Period would otherwise expire on a day which is
not a Business Day that Interest Period shall be extended to
expire on the next succeeding Business Day unless that next
succeeding Business Day falls within a fresh month in which
event that Interest Period shall be shortened to expire on the
immediately preceding Business Day. In this event the next
succeeding Interest Period shall in the absolute discretion of
the Lender (and subject always to this clause 4.1 (D)) expire
the relevant number of months after either (i) that next
succeeding or immediately preceding Business Day (as the case
may be) or (ii) the day on which the preceding Interest Period
would have expired if it had not been so extended or shortened
(as the case may be) or (iii) the day on which the preceding
Interest Period would have expired if no Interest Period had
ever been so extended or shortened.
4.2 Subject to clauses 4.3 and 6.2 hereof and to clause 14.1(K) of both the
Revolving Loan Facility Agreement and the Bridge Loan Facility
Agreement, the Borrower shall pay interest on the Loan or any relevant
part thereof for each Interest Period at the rate certified
conclusively (save for manifest error) by the Lender to be the
aggregate of the Margin and the rate per cent per annum for that
Interest Period quoted by Telerate Screen 3750 (rounded up to the
nearest one sixteenth of one per cent)(or, if the Telerate system is
not working, by Reuters Page ISDA (rounded up to the nearest one
sixteenth of one per cent) or, if neither the Telerate system nor the
Reuters system is working, the average rate per cent per annum (rounded
up to the nearest one sixteenth of one per cent) at which deposits of
amounts of United States Dollars equivalent to or comparable with the
Loan or relevant part thereof are offered to the Reference Banks (or
two of them if one is unable to quote a rate) for that Interest Period
in the London Inter-bank Market at or about 11.00 a.m. (London time)
two (2) Business Days (in London only) prior to the commencement of
that Interest Period. Such interest shall accrue and be payable on the
actual number of days elapsed, shall be calculated on the basis of a
year of three hundred and sixty (360) days and shall be paid on the
final day of that Interest Period and (if that Interest Period is
longer than one (1) month) at one (1) monthly intervals.
4.3 In the event of default by the Borrower in the payment of any sum
whatsoever due under this agreement (including interest) the Borrower
shall pay interest on that sum from the due date until payment (after
as well as before judgement) at a rate certified conclusively (save for
manifest error) by the Lender to be five per cent (5 %) per annum over
the cost to the Lender of funding that sum for such periods as the
Lender in its absolute discretion may think fit on the Business Day
succeeding that on which
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it became aware of the default and for so long as that sum remains
unpaid that rate shall be re-calculated on the same basis. Such
interest shall accrue and be payable on each day elapsing, shall be
calculated on the basis of a year of three hundred and sixty (360) days
and shall be paid on the demand of the Lender. In default of payment
such interest shall be compounded.
4.4 The Lender shall as soon as reasonably practicable notify the Borrower
of each rate of interest payable on the Loan or any relevant part
thereof under this clause 4.
5. REPAYMENT
5.1 Subject to clauses 6 and 11.1 hereof and to clauses 14.1(J) and (K) of
both the Revolving Loan Facility Agreement and the Bridge Loan Facility
Agreement, the Borrower shall repay the Loan in fifty eight (58)
instalments. The first such instalment shall amount to six hundred and
twelve thousand United States Dollars (USD612,000), the second to the
fifty seventh such instalments inclusive shall each amount to two
hundred and four thousand United States Dollars (USD204,000) and the
final instalment shall amount to the balance of the Loan. The first
instalment shall be paid on the date falling fifteen (15) months after
the Drawdown Date and the subsequent instalments shall be paid at one
(1) monthly intervals thereafter. If by virtue of the operation of
clause 14.1(K) of the Revolving Loan Facility Agreement and/or the
Bridge Loan Facility Agreement any such instalment is not paid or is
only partly paid, then, unless and until the Event of Default causing
the operation of that clause 14.1(K) has been remedied or waived to the
satisfaction of the Banks and the Banks have agreed and notified to the
Lender and the Borrower the basis on which payment of instalments
hereunder may be reestablished, the due date for payment of that
instalment or the balance thereof (as the case may be) shall be
postponed to the due date for payment of the final instalment.
Notwithstanding the operation of that clause 14.1(K), any failure by
the Borrower to pay any such instalment in full on the date originally
scheduled therefor shall constitute an Event of Default under clause
11.1(A) hereof and shall (inter alia) entitle the Lender to charge
interest under clause 4.3 hereof on the unpaid sum from the originally
scheduled date.
6. COMPULSORY AND VOLUNTARY PREPAYMENT
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6.1 If for any reason whatsoever beyond the control of the Lender it shall
become unlawful or impossible for the Lender to maintain or give effect
to all or part of its obligations as contemplated by this agreement the
obligation of the Lender to make the Loan available to the Borrower
shall cease and the Borrower shall forthwith upon the demand of the
Lender, but subject to clauses 14.1(J) and (K) of both the Revolving
Loan Facility Agreement and the Bridge Loan Facility Agreement, repay
the Loan (or such part thereof as the Lender shall specify in writing)
together with interest accrued thereon and any sums due to the Lender
by virtue of that repayment under clause 8.5 hereof.
6.2 If the Lender shall determine in good faith that:-
(A) by reason of circumstances affecting the London Inter-Bank
Market generally adequate and reasonable means do not exist
for ascertaining the rate of interest payable on the Loan or
any relevant part thereof for any Interest Period in
accordance with clause 4.2 hereof; or
(B) it would not be practicable or possible for the Lender to fund
or continue to fund the Loan or any relevant part thereof in
the London Inter-Bank Market,
then the Lender shall inform the Borrower in writing to that effect and
unless the Lender and the Borrower shall agree acceptable alterations
to the terms of this agreement (on the basis of an alternative source
of funds available to the Lender) the obligation of the Lender to make
the Loan or relevant part thereof available to the Borrower shall cease
and the Borrower shall, subject to clauses 14.1(J) and (K) of both the
Revolving Loan Facility Agreement and the Bridge Loan Facility
Agreement, be obliged on receiving a written notice from the Lender to
that effect to repay the Loan or the relevant part thereof together
with interest accrued thereon on the final day of the then current
Interest Period.
6.3 The Borrower may, subject to clauses 14.1(J) and (K) of both the
Revolving Loan Facility Agreement and the Bridge Loan Facility
Agreement, prepay the whole or part of the Loan together with interest
accrued thereon on the final day of any Interest Period in respect of
the Loan provided that:-
(A) the Borrower shall simultaneously pay to the Lender any sums
due to the Lender by virtue of that prepayment under clause
8.5 hereof;
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(B) any part prepayment of the Loan shall amount to a whole
multiple of one hundred thousand United States Dollars
(USD100,000);
(C) the Borrower shall have given the Lender not less than thirty
(30) days written notice of its intention to make such
prepayment (which once given shall be irrevocable) specifying
such day and the amount of intended prepayment and accompanied
by such evidence as the Lender may require that any
governmental or other consents for such prepayment have been
obtained or will be forthcoming; and
(D) no sums prepaid hereunder may be reborrowed under this
agreement.
7. ARRANGEMENT FEE
7.1 Subject to clause 8.2 hereof, no arrangement fee shall be payable by
the Borrower in connection with the Loan.
8. INDEMNITY
8.1 If any change in law or regulation or in the interpretation thereof or
if compliance by the Lender with any direction request or requirement
(whether or not having the force of law) of any central bank or other
authority shall:-
(A) subject the Lender to any tax with respect to the Loan or any
part thereof (other than tax on overall net income);
(B) change the basis of taxation to the Lender of payments of
principal or interest or any other payment due or to become
due hereunder;
(C) impose or modify any reserve, liquidity or capital adequacy
requirements or require the making of any special deposits
affecting the Lender; or
(D) impose on the Lender any other condition affecting the Loan or
any part thereof whether or not the Loan has been advanced
and the result is either to increase the cost to the Lender of making
or maintaining or committing to make the Loan or any part thereof or to
reduce the amount of any payment received by the Lender hereunder or to
reduce the rate of return which the
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Lender would have been able to obtain on its overall capital but for
entering into and/or performing this agreement then the Borrower shall
forthwith upon demand by the Lender pay to the Lender such amount as
the Lender certifies to be necessary to indemnify the Lender fully for
such additional cost or reduction. Any such demand may be made by the
Lender at any time before or after repayment of the Loan.
8.2 All legal fees and other reasonable costs and expenses whatsoever
(other than the costs of valuing the Vessel) incurred by the Lender in
connection with any one or more of this agreement, the Security
Documents and any other documents executed pursuant hereto or thereto
shall be paid by the Borrower forthwith upon demand by the Lender on a
full indemnity basis whether or not the Loan is advanced.
8.3 The Borrower shall pay forthwith upon demand by the Lender all stamp,
registration and other duties (including any such duties payable by the
Lender) imposed by any authority in respect of any one or more of this
agreement, the Security Documents and any other documents executed
pursuant hereto or thereto or otherwise in connection with the Loan.
8.4 Without prejudice to the rights of the Lender under or pursuant to
clause 11 hereof the Borrower shall indemnify the Lender fully
forthwith upon demand by the Lender for any and all losses damages
and/or expenses whatsoever incurred by the Lender:-
(A) as a result of the Loan not being advanced for any reason
whatsoever (other than default by the Lender) in accordance
with a notice given pursuant to clause 3.1(C) hereof;
(B) as a result of an Event of Default;
(C) in perfecting, protecting the value of or enforcing any of its
rights or securities under any one or more of this agreement,
the Security Documents and any other documents executed
pursuant hereto or thereto or in attempting so to do; or
(D) as a result of any payment hereunder, whether pursuant to a
judgment or otherwise, being made, obtained or enforced in a
currency other than United
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States Dollars.
8.5 In the event that the whole or part of the Loan is repaid or prepaid
otherwise than on the final day of an Interest Period in respect
thereof the Borrower shall (A) indemnify the Lender fully forthwith
upon demand by the Lender for any and all losses damages and/or
expenses incurred by the Lender in liquidating or reemploying fixed
deposits acquired from third parties to maintain the Loan or the
relevant part thereof (as the case may be) until the expiry of the then
current Interest Period in respect thereof and (B) pay to the Lender
forthwith on demand any sums due to the Lender as a result of that
repayment or prepayment under clause 8.6 hereof.
8.6 The Borrower shall indemnify the Lender fully forthwith upon demand by
the Lender for all losses, premiums, penalties, costs and expenses
whatsoever incurred by the Lender in connection howsoever with any
interest rate "swap", "cap" or other transaction entered into or to be
entered into or arranged by the Lender at the request or on behalf of
the Borrower at any time and from time to time with any counterparty a
direct or indirect commercial purpose of which is to limit or offset
the exposure of the Borrower to future increases of floating interest
rates in connection howsoever with this agreement.
8.7 The indemnities contained in this clause 8 shall apply irrespective of
any indulgence granted to the Borrower or any other party from time to
time and shall continue in full force and effect notwithstanding any
payment in favour of the Lender and any amount due from the Borrower
under this clause 8 will be due as a separate debt and shall not be
affected by judgment being obtained for any other sums due under any
one or more of this agreement, the Security Documents and any other
documents executed pursuant hereto or thereto.
9. PAYMENTS
9.1 All payments by the Borrower hereunder shall be made to the Lender's
account with such bank or banks as the Lender shall nominate from time
to time.
9.2 Subject to the sub-clauses of this clause 9.2 all payments by the
Borrower hereunder shall be made in full without set-off or
counterclaim and free and clear of and without
- 18 -
deduction or withholding for or on account of any tax of any
jurisdiction.
(A) If the Borrower is required by law to make any deduction or
withholding from any payment hereunder for or on account of
tax, it shall do so and the sum due from the Borrower in
respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction
or withholding, the Lender receives and retains (free of any
liability in respect of any such deduction or withholding) a
net sum equal to the sum it would have received and retained
had no deduction or withholding been required to be made.
(B) If at any time the Borrower is required by law to make any
deduction or withholding from any sum payable by it hereunder
(or if thereafter there is any change in the rates at which or
the manner in which such deductions or withholdings are
calculated) the Borrower shall promptly and fully notify the
Lender accordingly.
(C) If the Borrower makes any payment hereunder in respect of
which it is required by law to make any deduction or
withholding it shall pay the full amount to be deducted or
withheld to the relevant taxation or other authority within
the time allowed for such payment under applicable law and
shall deliver to the Lender within thirty (30) days after it
has made such payment to the applicable authority the
appropriate receipt or certificate issued by such authority or
the Borrower as the case may be evidencing the payment to such
authority of all amounts so required to be deducted or
withheld from such payment.
9.3 If any sum becomes due for payment hereunder on a day which is not a
Business Day the due date for payment shall be extended to the next
succeeding Business Day unless that next succeeding Business Day falls
within a fresh month in which event the due date for payment shall be
brought forward to the immediately preceding Business Day. Any interest
payable shall be adjusted accordingly. In the event that the due date
for payment of any Repayment Instalment is so extended or brought
forward the due date for payment of the next following Repayment
Instalment shall not be affected thereby.
9.4 All payments hereunder shall be made in United States Dollars not later
than 11:00 a.m. (New York time) on the due dates therefor in such funds
as may be customary for the same day settlement of international
banking transactions in United States
- 19 -
Dollars in New York City provided that payments in respect of costs and
expenses shall be made in the currencies in which the same are
incurred.
9.5 The Lender shall open and maintain on its books a control account in
the name of the Borrower showing the advance of the Loan and the
computation and payment of interest and all other sums due hereunder.
The Borrower's obligations to repay the Loan and to pay interest
thereon and to pay all other sums due hereunder shall be evidenced by
the entries from time to time made in the control account opened and
maintained under this clause 9.5 which entries will be conclusive and
binding in the absence of manifest error.
10. APPLICATION OF MONEYS
10.1 All moneys assigned to the Lender under the Earnings Assignment shall
be paid to the Earnings Account.
10.2 Subject to the relevant provisions of the Revolving Loan Facility
Agreement and the Bridge Loan Facility Agreement (including, without
limitation, clauses 14.1(I), (J) and (K) of both those agreements) and
to clause 10.4 hereof all moneys paid to the Earnings Account shall be
applied by the Agent as follows:-
(A) first in payment of any and all sums whatsoever certified by
the Lender to the Agent to be due and payable to the Lender
hereunder (such sums to be paid in such order as the Lender
may in its sole discretion elect);
(B) second in retention in the Earnings Account of amounts
equivalent in aggregate to the amount of interest next falling
due to be paid hereunder; and
(C) third in retention of any credit balance in the Earnings
Account
Provided That:-
(i) sums retained in the Earnings Account pursuant to
clause 10.2(B) hereof shall be applied by the Agent in
or towards payment to the Lender of interest due
hereunder on the due dates for payment thereof;
- 20 -
and
(ii) nothing herein contained shall be deemed to affect the
absolute obligation of the Borrower to pay interest on
and to repay the Loan as provided in clauses 4 and 5
hereof.
10.3 Subject to the relevant provisions of the Revolving Loan Facility
Agreement and the Bridge Loan Facility Agreement (including, without
limitation, clauses 14.1(J) and (K) of both those agreements) and to
clause 10.4 hereof all moneys payable to the Lender under the Insurance
Assignment and any other moneys payable to the Lender by any one or
more of the Security Parties under any one or more of this agreement,
the Security Documents and any other documents executed pursuant hereto
or thereto the application of which is not specifically provided for by
another clause hereof shall be paid to the Lender's account with such
bank or banks as the Lender may nominate from time to time and shall be
applied by the Lender as follows:-
(A) all moneys received from a Total Loss or sale of the Vessel
shall be applied as follows:-
(i) first in payment of any and all sums whatsoever due
and payable to the Lender hereunder (such sums to be
paid in such order as the Lender may in its sole
discretion elect);
(ii) second in repayment of Repayment Instalments and
accrued interest thereon in reverse order of maturity
and in payment of any sums due to the Lender by virtue
of that repayment under clause 8.5 hereof; and
(iii) third in payment of any credit balance to the
Borrower or to whomsoever may be entitled thereto;
and
(B) all moneys not covered by clause 10.3(A) hereof shall be
applied as follows:-
(i) first in accordance with clause 10.3(A)(i) hereof;
(ii) second (in respect only of moneys received by virtue
of the Insurance Assignment) in reimbursement to the
Borrower (if not already reimbursed pursuant to the
relevant provisions of the Revolving Loan Facility
Agreement and/or the Bridge Loan Facility Agreement)
for such of the costs (if any) incurred by the
Borrower in effecting the
- 21 -
repair of the damage in respect of which those moneys
are received as the Lender shall approve (such
approval not to be unreasonably withheld) and in
payment to the Earnings Account of all moneys
received in respect of loss of hire insurances (if
any);
(iii) third in payment of Repayment Instalments and accrued
interest thereon in reverse order of maturity and in
payment of any sums due to the Lender by virtue of
that repayment under clause 8.5 hereof; and
(iv) fourth in payment of any credit balance to the
Borrower or to whomsoever may be entitled thereto.
10.4 Subject to the relevant provisions of the Revolving Loan Facility
Agreement and the Bridge Loan Facility Agreement (including, without
limitation, clauses 14.1(J) and (K) of both those agreements), from and
after the giving of notice by the Lender to the Borrower pursuant to
clause 11.1 hereof all moneys whatsoever received or recovered by the
Lender under any one or more of this agreement, the Security Documents
and any other documents executed pursuant hereto or thereto and all
moneys from time to time standing to the credit of the Earnings Account
shall be paid to the Lender's account with such bank or banks as the
Lender may nominate from time to time and shall be applied by the
Lender as follows:-
(A) first in accordance with clause 10.3(A)(i) hereof, subject to
any right the Lender may have to delay any such application in
order to maximise its claim; and
(B) second in payment of any credit balance to the Borrower or to
whomsoever may be entitled thereto.
11. DEFAULT
11.1 The Lender may by notice in writing to the Borrower declare the Loan to
be immediately repayable with accrued interest thereon (plus any sums
due to the Lender by virtue of that repayment under clause 8.5 hereof)
and any security held by the Lender shall become immediately
enforceable if any of the following events occurs:-
- 22 -
(A) failure by the Borrower to pay promptly on the due date
therefor any sum whatsoever due for payment by it under this
agreement;
(B) any one or more of the Security Parties and the Trustee making
default in the observance or performance of any other
obligation covenant or undertaking contained in any one or
more of this agreement, the Security Documents and any other
documents executed pursuant hereto or thereto and (if the same
is in the opinion of the Lender capable of remedy) the
continuation of that default unremedied for a period of
fifteen (15) days;
(C) any of the representations and warranties made or deemed to
have been made in any one or more of this agreement, the
Security Documents and any other documents executed pursuant
hereto or thereto being inaccurate or misleading when made or
becoming inaccurate or misleading at any time hereafter were
the same to be repeated in relation to the facts subsisting at
that time (whether or not any such repetition actually
occurs);
(D) any event of default occurring under any one or more of the
Security Documents;
(E) the fulfilment of any one or more of the obligations covenants
and undertakings contained in any one or more of this
agreement, the Security Documents and any other documents
executed pursuant hereto or thereto or the exercise of any of
the rights vested in the Lender hereunder or thereunder
becoming either unlawful under any applicable law or
unauthorised by any authority having jurisdiction or otherwise
impossible;
(F) a bona fide petition being presented or an order being made or
an effective resolution being passed for the commencement of
any proceedings for the liquidation winding-up or
re-organisation of any one or more of the Security Parties
except for the purpose of and followed by an amalgamation or
reconstruction the terms of which shall have been previously
approved in writing by the Lender;
(G) a distress or execution being levied or enforced upon or sued
out against any part of the assets of any one or more of the
Security Parties which in the Lender's opinion would have a
material adverse effect on any one or more of
- 23 -
the Security Parties and not being satisfied removed or
discharged within fourteen (14) days;
(H) the holder of any Encumbrance taking possession of or a
liquidator, administrator, receiver, administrative receiver,
trustee or similar officer being appointed in respect of the
whole or a substantial part of the assets of any one or more
of the Security Parties;
(I) any one or more of the Security Parties being unable or
admitting its inability to pay its or their lawful debts as
they mature or convening a meeting of or preparing to enter
into any arrangement or composition with or making a general
assignment for the benefit of its or their creditors or being
adjudicated bankrupt or insolvent;
(J) any other Borrowed Money of any one or more of the Security
Parties becoming due or becoming capable of being declared due
prior to its stated date of maturity by reason of default on
the part of any one or more of the Security Parties;
(K) any one or more of the Security Parties ceasing to carry on or
suspending or threatening to cease to carry on or to suspend
its or their business or a substantial part of the assets or
business of any one or more of the Security Parties being
seized confiscated or expropriated;
(L) a Total Loss occurring and either (i) the Lender not being
satisfied at any time in its absolute discretion that the
Total Loss is adequately covered by insurance and that the
relevant insurance proceeds will be paid to the Lender or (ii)
any insurance claim in respect thereof being rejected by the
underwriters at any time or (iii) the Lender failing to
receive the insurance proceeds in respect thereof within one
hundred and eighty (180) days thereafter;
(M) any one or more of the Subject Documents being repudiated or
terminated without the prior written consent of the Lender;
(N) a material adverse change occurring in the business, assets or
financial
- 24 -
condition of any one or more of the Security Parties which may
reasonably be considered to affect its or their ability to
comply with all or any of its or their respective obligations
under any one or more of the Subject Documents; or
(O) an event of default occurring under the Revolving Loan
Facility Agreement or the Bridge Loan Facility Agreement.
12. SECURITY
12.1 As security for the Loan, interest thereon and all other sums due and
to become due hereunder the Borrower shall provide the Lender with the
following documents in form and substance satisfactory to the Lender:-
(A) duly registered third Panamanian naval mortgage over the
Vessel duly executed by the Borrower;
(B) third priority assignment duly executed by the Borrower of all
insurances whatsoever in respect of the Vessel and loss of its
earnings and all compensation in respect of the requisition
for title or other compulsory acquisition of the Vessel (with
the exception of requisition hire);
(C) third priority assignment duly executed by the Borrower of the
benefit of all earnings whatsoever of the Vessel (including
requisition hire);
(D) guarantee and indemnity duly executed by the Guarantor;
(E) third priority charge over all the authorised and issued
shares in the Borrower duly executed by the Guarantor;
(F) tripartite agreement duly executed by (i) the Agent, the
Trustee and the Banks, (ii) Neptun Maritime Oyj and the Lender
and (iii) the Borrower and the Guarantor allowing the
execution of the other Security Documents and coordinating the
Lender's interests under this agreement and the other Security
Documents with those of the Agent and/or the Trustee and/or
the Banks under (i) the Revolving Loan Facility Agreement and
the Revolving Loan Securities and (ii) the Bridge Loan
Facility Agreement and the Bridge Loan Securities; and
- 25 -
(G) letter of subordination duly executed by the Manager
subordinating its interests under the Management Agreement to
those of the Lender under this agreement.
13. REPRESENTATIONS AND WARRANTIES
13.1 The Borrower hereby represents and warrants that:-
(A) each of the Security Parties is a duly incorporated company
validly existing and in good standing under the laws of its
country of incorporation and all the shares in the Borrower
are beneficially owned by the Guarantor;
(B) each of the Security Parties has full power and authority to
execute deliver and perform such of the Subject Documents to
which it is a party;
(C) each of the Security Parties has taken all necessary corporate
or other action required to authorise the execution delivery
and performance of such of the Subject Documents to which it
is a party;
(D) all consents licences approvals or authorisations whatsoever
required to make the Subject Documents legal valid enforceable
and admissible in evidence have been obtained and are in full
force and effect;
(E) from and after execution and delivery thereof each of the
Subject Documents will constitute legal valid and binding
obligations of the parties thereto (other than the Agent, the
Trustee, the Banks and the Lender) enforceable in accordance
with its terms and will not contravene any applicable law or
regulation or any contractual constitutional or other
restriction binding on any of the parties thereto (other than
the Agent, the Trustee, the Banks and the Lender);
(F) as at the date hereof no material litigation or administrative
proceedings of or before any board of arbitration, Court or
Governmental authority or agency is pending or (to the
Borrower's knowledge) threatened the result of which would or
might be to have a material adverse effect on the business
assets or financial
- 26 -
condition of any one or more of the Security Parties;
(G) the copies of any of the Subject Documents delivered or to be
delivered to the Lender hereunder constitute the full
agreement between the parties thereto with respect to the
subject matter thereof and none of the parties thereto is in
default thereunder;
(H) all historic financial information and other documentation
submitted to the Lender by or on behalf of the Borrower in
connection herewith is accurate and correct in all material
respects and not misleading;
(I) the claims of the Lender against the Borrower under this
agreement will rank at least pari passu with the claims of all
unsecured creditors of the Borrower other than claims of such
creditors to the extent that they are statutorily preferred;
(J) each Security Party and its business and assets (including,
without limitation, all computer systems, all systems and
equipment containing embedded microchips (including leased
systems and equipment) and any other systems, equipment or
parts of the business or assets whatsoever of that Security
Party whose proper functioning or operation is capable of
being affected by the incorrect processing, storing,
calculation or recognition of dates, together with all
software and data in connection with any of the foregoing)
shall at all times comply with the requirements of Year 2000
Conformity as defined in "A DEFINITION OF YEAR 2000 CONFORMITY
REQUIREMENTS" issued by the British Standards Institution (BSI
DISC PD2000-1:1998) or such later reviewed, revised or amended
version thereof as may be published by the British Standards
Institution from time to time (in which case the later version
shall be the relevant one for the purposes of this clause);
and
(K) no Event of Default has occurred or is continuing and no event
which with the giving of notice and/or lapse of time would
constitute an Event of Default has occurred or is continuing.
14. COVENANTS
- 27 -
14.1 The Borrower hereby covenants that from the date hereof until the
Borrower has no remaining obligations, actual or contingent, under this
agreement:-
(A) the Borrower will file all requisite tax returns and will pay
all tax as shown to be due and payable on such returns or any
of the assessments made against it (other than those being
contested in good faith);
(B) the Borrower will carry on and conduct its business in a
proper and efficient manner and will duly pay all outgoings as
and when they fall due and in particular without limiting the
generality of the foregoing will duly observe and perform all
the terms and conditions of any contract of employment of the
Vessel to be observed and performed by it;
(C) the Borrower will prepare or cause to be prepared, in
accordance with GAAP, annual audited accounts for the Borrower
and unaudited quarterly accounts for the Borrower; the
Borrower will furnish the Lender with copies of the audited
annual accounts no later than ninety five (95) days after the
end of each financial year and copies of the unaudited
quarterly accounts no later than fifty (50) days after the end
of each financial quarter; the audited annual accounts shall
include profit and loss accounts and balance sheets certified
and audited by an accountant acceptable to the Lender which
shall include ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.;
(D) the Borrower will provide the Lender in a form acceptable to
the Lender no later than ten (10) days after the end of each
month monthly management information (including traffic
statistics, cash flows, booking reports and outstanding trade
debt) in respect of the Borrower;
(E) the Borrower shall procure that the Earnings Account is opened
and maintained at the bank specified in the definition thereof
in clause 1.2 hereof and shall not keep any accounts with any
bank other than the Agent unless otherwise agreed specifically
with the Agent;
(F) the Borrower shall promptly furnish to the Lender all such
accounts and financial information concerning any one or more
of the Security Parties and the Vessel as the Lender may from
time to time reasonably require including without limiting the
generality of the foregoing cash flow analyses, budgets
- 28 -
and details of the operating costs of the Vessel;
(G) the Vessel, its earnings and the interests of the Lender as
mortgagee of the Vessel shall be insured with such
underwriters insurance offices and clubs for such amounts for
such risks in such form and upon such conditions as are
satisfactory to the Lender from time to time provided that the
amount of each of the marine and war risks insurances shall
not in any event be less than the greater from time to time of
(i) the market value of the Vessel and (ii) one hundred and
twenty per cent (120%) of the aggregate amount of the Loan,
the Revolving Loan Facility and the Bridge Loan Facility then
outstanding;
(H) the Borrower will not without the prior written consent of the
Lender:-
(i) create or allow to subsist any Encumbrance over any of
its assets or any part thereof save for Permitted
Liens and those created by any of the Security
Documents or the Revolving Loan Securities or the
Bridge Loan Securities;
(ii) incur any liability in respect of Borrowed Money
except for the Revolving Loan Facility, the Bridge
Loan Facility and unsecured Borrowed Money
subordinated to the Loan hereunder;
(iii) make loans or advances to others (except for loans or
advances made in the ordinary course of business in
connection with the chartering and/or operation and/or
repair of the Vessel);
(iv) except in connection with the chartering and/or
operation and/or repair of the Vessel incur any other
liability to a third party which in the opinion of the
Lender is of a substantial nature;
(v) consolidate with any other company or merge into any
company;
(vi) engage in any business other than the ownership
operation chartering and management of the Vessel;
- 29 -
(vii) guarantee endorse or otherwise become or remain
liable in respect of the obligations of any person
firm or corporation;
(viii) pay any dividends or other distributions or issue any
new shares or transfer any shares;
(ix) sell or otherwise dispose of the Vessel or any share
therein or any other asset (the Lender's consent not
to be unreasonably withheld);
(x) make or allow any alteration to or waiver of the
terms of any one or more of the Subject Documents;
(xi) appoint any manager of the Vessel other than the
Manager;
(xii) change the class, flag or employment of the Vessel as
a passenger cruise ship; or
(xiii) make any acquisitions or investments other than the
regular dry-docking and maintenance of the Vessel
(the Lender's consent not to be unreasonably
withheld);
(I) the Borrower will procure that the amount standing to the
credit of the Earnings Account shall not at any time fall
below two million United States Dollars (USD2,000,000);
(J) the Borrower shall procure that its Debt Service Coverage
Ratio (calculated as set out below, with the first such
calculation being made twelve (12) months after the Drawdown
Date and the subsequent calculations being made at three (3)
monthly intervals thereafter) shall not be less than the ratio
specified in item 1 in schedule B hereto (for the period of
twelve (12) months after the Drawdown Date) and the ratio
specified in item 2 in schedule B hereto (for any period
thereafter) and for this purpose the Debt Service Coverage
Ratio shall be calculated in accordance with the following
formula:-
EBITDA
------------------
Financial Expenses
- 30 -
where
"EBITDA" means, for the previous period of twelve (12) months,
the aggregate of:
(i) Net Income (but excluding gains and losses from the
sale of assets or reserves relating thereto and items
classified as extraordinary or non-recurring) from the
Borrower's operations for such period and for this
purpose Net Income means the consolidated net income
of the Borrower as determined in accordance with GAAP;
and
(ii) the aggregate amounts deducted in determining Net
Income for such period in respect of depreciation,
amortisation, taxes, deferred income and interest
expense of the Borrower; and
"Financial Expenses" means, for the previous period of twelve
(12) months, the sum of:
(i) the aggregate principal payable or paid during such
period on any Borrowed Money of the Borrower (other
than the scheduled principal repayment in respect of
the Bridge Loan Facility and principal repayments
under the Revolving Loan Facility Agreement to the
extent that they were redrawn during the same period);
(ii) aggregate interest expense (including, without
limitation, capitalised interest accrued during such
period) of the Borrower for such period; and
(iii) all rent and any capital lease obligations or
operating lease obligations by which the Borrower is
bound which are payable or paid during such period as
calculated in accordance with GAAP and derived from
the then latest accounts of the Borrower;
(K) the Borrower shall provide the Lender with compliance
certificates in relation to the relevant financial covenants
contained in this agreement in the form set out in appendix II
hereto on or before the Drawdown Date and at three (3)
- 31 -
monthly intervals after the Drawdown Date and, for the
avoidance of doubt, the covenant in clause 14.1(J) hereof
shall not be deemed to be a 'relevant financial covenant' for
the purposes of this clause 14.1(K) until the date falling
twelve (12) months after the Drawdown Date;
(L) the Borrower will promptly inform the Lender if any Event of
Default or any event which with the giving of notice and/or
lapse of time would constitute an Event of Default occurs or
if any event occurs which may materially adversely affect its
ability to perform any of its obligations under any one or
more of this agreement, the Security Documents and any other
documents executed pursuant hereto or thereto; and
(M) the Borrower will from time to time at the request of the
Lender execute and deliver to the Lender or procure the
execution and delivery to the Lender of all such documents as
the Lender shall deem desirable in its absolute discretion for
giving full effect to this agreement and for perfecting,
protecting the value of or enforcing any rights or securities
granted to the Lender under any one or more of this agreement,
the Security Documents and any other documents executed
pursuant hereto or thereto.
15. SET-OFF
15.1 The Lender is hereby authorised to combine any and all accounts held by
the Borrower with the Lender at any of the Lender's offices and to
apply (without any prior notice) any credit balance to which the
Borrower is then beneficially entitled on any such account (whether or
not that credit balance is then due to the Borrower) in or towards
satisfaction of any sums then due and payable by the Borrower
hereunder. For that purpose the Lender is hereby authorised to use all
or part of that credit balance to buy such other currency or currencies
as may be required to enable it to effect that application. The Lender
shall not be obliged to exercise any of its rights under this clause,
which shall be without prejudice and in addition to any right of set
off, combination of accounts, lien or other rights to which it at any
time otherwise is entitled (whether by operation of law, contract or
otherwise).
16. ASSIGNMENT AND PARTICIPATION
16.1 This agreement shall be binding upon and inure to the benefit of the
Lender and the Borrower and their respective successors and assigns.
- 32 -
16.2 The Borrower may not assign its rights or obligations hereunder without
the prior written consent of the Lender.
16.3 The Lender may at any time with the prior written consent of the
Borrower (such consent not to be unreasonably withheld and not to be
required at all if an Event of Default has occurred and is subsisting)
assign transfer or grant participations in all or part of its rights
and obligations hereunder and for this purpose:-
(A) no such consents shall be required from the Borrower if such
assignee, transferee or grantee is a subsidiary company,
holding company or sister company of the Lender;
(B) the Lender shall be at liberty to disclose on a confidential
basis to any such assignee transferee or grantee (or to any
potential such assignee transferee or grantee) all such
information concerning any one or more of the Security
Parties, the Vessel and the Subject Documents as the Lender
may deem appropriate; and
(C) the Borrower shall upon demand by and at the expense of the
Lender execute and deliver to the Lender all such documents
and do all such acts and things as the Lender may deem
necessary or desirable in its absolute discretion for giving
full effect to any such assignment transfer or participation.
17. MISCELLANEOUS
17.1 Time shall be of the essence of this agreement but no failure or delay
on the part of the Lender to exercise any power or right hereunder
shall operate as a waiver of such power or right nor shall any single
or partial exercise of any power or right hereunder preclude any other
or further exercise thereof or the exercise of any other power or right
hereunder. The powers and rights provided to the Lender in this
agreement are cumulative and shall not exclude any powers or rights
provided to the Lender by law.
17.2 In the event of any of the provisions contained in any one or more of
this agreement, the Security Documents and any other documents executed
pursuant hereto or thereto
- 33 -
being invalid, illegal or unenforceable in any respect under any law,
the validity, legality and enforceability of the remaining provisions
herein or therein contained shall not in any way be affected or
impaired thereby.
17.3 The Lender shall not be liable for any failure to meet its obligations
hereunder resulting from any cause whatsoever beyond its control.
18. NOTICES
18.1 Any notice or other correspondence in connection herewith required to
be sent or given by the Borrower to the Lender shall be sent to the
Lender in the English language at c/o Neptun Maritime ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Finland, Attention: Finance Department
(facsimile no. + 358 9 180 4640) or to such other address or addresses
as may from time to time be notified by the Lender to the Borrower for
such purpose.
18.2 Any notice or other correspondence in connection herewith required to
be sent or given by the Lender to the Borrower shall be sent to the
Borrower in the English language at c/o Commodore Holdings Limited,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, U.S.A.,
Attention: Chief Financial Officer (facsimile no. ▇▇▇▇ ▇▇▇ ▇▇▇▇) with
copies to ▇▇▇▇▇▇▇▇ L Deutsch, P.A., Broad and ▇▇▇▇▇▇, Miami Center -
Suite 3000, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇.
(facsimile no. ▇▇▇▇ ▇▇▇ ▇▇▇▇) or to such other address or addresses as
the Borrower may from time to time notify to the Lender in writing and
shall be deemed to have been validly given and received on the date of
dispatch if sent by telex and five (5) days after having been posted if
sent by prepaid first class or airmail post.
19. PROPER LAW AND JURISDICTION
19.1 This agreement shall be governed by and construed in accordance with
the Laws of England and for the exclusive benefit of the Lender the
Borrower and the Lender hereby irrevocably submit to the jurisdiction
of the High Courts of Justice in England. The Borrower hereby
irrevocably authorises and appoints Consult Marine of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ as its agent in England for
the acceptance of service of legal proceedings on it hereunder.
- 34 -
IN WITNESS whereof the parties hereto have executed this agreement the day and
year first above written.
SIGNED by )
/s/ Per ▇▇▇▇▇ Skult )
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for and on behalf of )
EFF-SHIPPING LIMITED )
in the presence of:- )
SIGNED by )
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
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for and on behalf of )
CROWN CRUISES OF PANAMA, INC. )
in the presence of:- )
