DRYSHIPS INC. as Borrower - and - THE BANKS AND FINANCIAL INSTITUTIONS listed in Part A of Schedule 1 as Lenders - and - HSH NORDBANK AG as Agent and Security Trustee - and - HSH NORDBANK AG as Lead Arranger and Lead Bookrunner - and - THE GOVERNOR...
Exhibit
4.6
Date November
2006
as
Borrower
-
and -
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Part A of Schedule 1
as
Lenders
-
and -
HSH
NORDBANK AG
as
Agent and Security Trustee
-
and -
HSH
NORDBANK AG
as
Lead Arranger and Lead Bookrunner
-
and -
THE
GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as
Joint Bookrunner
-
and -
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
at Part B of Schedule 1
as
Swap Banks
_______________________________________
_______________________________________
relating
to revolving credit and term loan facilities
of
(originally) up to US$110,000,000 in aggregate
INDEX
Clause
Page
|
1
|
INTERPRETATION
|
2
|
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
3
|
|
3
|
CONDITIONS
PRECEDENT
|
3
|
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE DOCUMENTS
|
4
|
|
6
|
FURTHER
ASSURANCES
|
10
|
|
7
|
FEES
AND EXPENSES
|
10
|
|
8
|
COMMUNICATIONS
|
11
|
|
9
|
SUPPLEMENTAL
|
11
|
|
10
|
LAW
AND JURISDICTION
|
11
|
|
REPAYMENT
OF TERM LOAN
|
13
|
|
|
EXECUTION
PAGES
|
15
|
THIS AGREEMENT is made
on November
2006
BETWEEN
|
(1)
|
DRYSHIPS
INC. as Borrower;
|
|
(2)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Part A of Schedule 1, as Lenders;
|
|
(3)
|
HSH NORDBANK AG, acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx Xxxxxxxx xx Xxxxxxx, as Agent;
|
|
(4)
|
HSH NORDBANK AG, acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx Xxxxxxxx xx Xxxxxxx, as Security
Trustee;
|
|
(5)
|
HSH NORDBANK AG, acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx Xxxxxxxx xx Xxxxxxx, as Lead
Arranger;
|
|
(6)
|
HSH NORDBANK AG, acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx Xxxxxxxx xx Xxxxxxx, as Lead
Bookrunner;
|
|
(7)
|
THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND, acting through its office at New Uberior House,
00 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, XX0 0XX, Xxxxxxxx, as Joint Bookrunner;
and
|
|
(8)
|
THE BANKS AND
FINANCIAL INSTITUTIONS listed at Part B of Schedule 1,
as Swap
Banks.
|
BACKGROUND
|
(A)
|
By
a loan agreement dated 31 March 2006 (as supplemented and amended by a
supplemental letter dated 15 May 2006, the “Loan Agreement”) and made between
(i) the Borrower, (ii) the Lenders, (iii) the Agent, (iv) the Security
Trustee, (v) the Lead Arranger, (vi) the Lead Bookrunner, (vii) the Joint
Bookrunner, (vii) the Joint Underwriters and (ix) the Swap Banks, the
Lenders agreed to make available to the Borrower both term loan and
short-term credit facilities of (originally) up to US$110,000,000 in
aggregate.
|
|
(B)
|
The
Borrower has made a request to the Creditor Parties
to:
|
|
|
(i)
|
increase
the amount of the Term Loan by US$1,638,135.59 and to allow the Borrower
to use the increase to part-finance the acquisition of m.v. “REDONDO” by
the wholly-owned subsidiary of the Borrower, Argo Owning Company Limited,
being a corporation incorporated in, and existing under the laws of, the
Xxxxxxxx Islands; and
|
|
|
(ii)
|
increase
the amount of the Credit Facility by US$10,222,000 and to allow the
Borrower to use the increase to (a) refinance the existing indebtedness
secured on m.v.s “DELRAY”, “ESTEPONA” and “FORMENTERA” owned by
the wholly-owned subsidiaries of the Borrower, Classical Owning Company
Limited, Human Owning Company Limited and Paternal Owning Company Limited
(each being a corporation incorporated in and existing under the laws of
the Republic of the Xxxxxxxx Islands) and (b) provide working capital for
its general corporate purposes.
|
|
(C)
|
Following
the drawdown of the increase to the Term Loan and the Credit Facility
referred to in Recital (B) above the consolidated Term Loan will be
secured on the Ships listed in Appendix
III.
|
|
(D)
|
This
Agreement sets out the terms and conditions on which the Creditor Parties
agree, with effect on and from the Effective Date, to amend the Loan
Agreement.
|
IT IS AGREED as
follows:
|
1
|
INTERPRETATION
|
|
1.1
|
Defined
expressions. Words and expressions defined in the Loan
Agreement and the other Finance Documents shall have the same meanings
when used in this Agreement unless the context otherwise
requires.
|
|
1.2
|
Definitions. In
this Agreement, unless the contrary intention
appears:
|
“Argo” means Argo Owning
Company Limited, a corporation incorporated and existing under the laws of the
Republic of the Xxxxxxxx Islands and having its registered office at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH
96960;
“Effective
Date” means the date on which the conditions precedent in
Clause 3 are satisfied;
“Loan
Agreement” means the loan agreement dated 31 March 2006 (as
supplemented and amended by a supplemental letter dated 15 May 2006) referred to
in Recital (A);
“Mortgage
Amendment” means, in relation to each Mortgage, an amendment
to such Mortgage, to be in such form and on such terms as may be acceptable to
the Lenders and in the plural, means all of them;
“Named Ships” means each
of:
|
|
(a)
|
the
1994-built bulk carrier of 38,267 gross registered tons and 23,975 net
registered tons registered in the ownership of Classical under Maltese
flag with the name “DELRAY”;
|
|
|
(b)
|
the
1994-built bulk carrier 38,267 gross registered tons and 23,975 net
registered tons registered in the ownership of Human under Maltese flag
with the name “ESTEPONA”; and
|
|
|
(c)
|
the
1996-built bulk carrier 38,267 gross registered tons and 23,975 net
registered tons registered in the ownership of Paternal under Maltese flag
with the name “FORMENTERA”;
|
“Replacement Ship” means the
2000-built bulk carrier of 40,562 gross registered tons and 26,139 net
registered tons currently registered in the ownership of the Replacement Ship
Seller under Bahamas flag with the name “LIBERTY ONE” which is to be acquired by
Argo pursuant to the Replacement Ship MOA and registered in its ownership under
Maltese flag with the name “REDONDO”;
“Replacement Ship Advance”
means an amount of up to the lesser of (a) $1,638,135.59 and (b) 12 per cent. of
the Market Value of the Replacement Ship (determined in accordance with the
valuation referred to in Schedule 5, Part D, Paragraph 5 of the Loan Agreement)
which is to be made available in accordance with and pursuant to Clauses 2.3 and
4.2(g) of the Loan Agreement;
“Replacement Ship
MOA” means a memorandum of agreement dated 11 September 2006
made between the Replacement Ship Seller and Xxxx as buyer in respect of the
sale and purchase of the Replacement Ship for a price of $40,750,000;
and
“Replacement Ship
Seller” means Liberty Maritime International Ltd. a company
incorporated in and existing under the laws of the Bahamas.
|
1.3
|
Application of construction and
interpretation provisions of Loan Agreement. Clauses 1.2
and 1.5 of the Loan Agreement apply, with any necessary modifications, to
this Agreement.
|
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
|
2.1
|
Agreement of the
Lenders. The Lenders agree, subject to and upon the
terms and conditions of this
Agreement:
|
|
(a)
|
to
increase the Term Loan by
$1,638,135.59;
|
|
(b)
|
to
allow the Borrower to use the Replacement Ship Advance for the purpose of
financing part of the acquisition cost of the Replacement
Ship;
|
|
(c)
|
to
increase the Credit Facility by
$10,222,000;
|
|
(d)
|
to
allow the Borrower to draw down up an Additional Advance, for the purpose
of refinancing the existing indebtedness secured on the Named Ships and to
provide the Borrower with working capital for its general corporate
purposes; and
|
|
(e)
|
to
(i) waive the prepayment of the Loan required to be made pursuant to
Clause 8.9 of the Loan Agreement in connection with the sale of “PANORMOS”
(such prepayment being in an amount of $3,251,854.41) and (ii) allow the
Borrower to apply such amount towards part-financing the acquisition of
“LIBERTY ONE” (tbr “REDONDO”) by
Xxxx
|
Provided that following the
drawdown of the Additional Advance referred to in paragraph (d) above and the
increase to the Term Loan referred to in paragraph (a) above, the Loan will be
fully drawn and no further amounts will be available to the Borrower pursuant to
the Loan Agreement.
|
2.2
|
Agreement of the Creditor
Parties. The Creditor Parties agree, subject to and upon
the terms and conditions of this Agreement, to the consequential amendment
of the Loan Agreement and the other Finance Documents in connection with
the matters referred to in Clause
2.1.
|
|
2.3
|
Effective Date. The
agreement of the Lenders and the other Creditor Parties contained in
Clauses 2.1 and 2.2 shall have effect on and from the Effective
Date.
|
|
3
|
CONDITIONS
PRECEDENT
|
|
3.1
|
General. The
agreement of the Lenders and the other Creditor Parties contained in
Clauses 2.1 and 2.2 is subject to the fulfilment of the conditions
precedent in Clause 3.2.
|
|
3.2
|
Conditions
precedent. The conditions referred to in Clause 3.1 are
that the Agent shall have received the following documents and evidence in
all respects in form and substance satisfactory to the Agent and its
lawyers on or before the Effective
Date:
|
|
(a)
|
documents
of the kind specified in Schedule 5, Part A, paragraphs 3, 4 and 5 of the
Loan Agreement in relation to the Borrower, updated with appropriate
modifications to refer to this
Agreement;
|
|
(b)
|
an
original of this Agreement duly executed by the parties to
it;
|
|
(c)
|
a
duly executed original of each Mortgage
Amendment;
|
|
(d)
|
evidence
that each Mortgage Amendment has been duly registered against the Ship to
which it relates in accordance with the laws of
Malta;
|
|
(e)
|
the
fees referred to in Clause 7 of this Agreement have been received in full
by the Agent; and
|
|
(f)
|
favourable
legal opinions from lawyers appointed by the Agent on such matters
concerning the laws of the Malta, the Xxxxxxxx Islands and such other
relevant jurisdictions as the Agent may
require.
|
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
|
4.1
|
Repetition of Loan Agreement
representations and warranties. The Borrower represents
and warrants to the Creditor Parties that the representations and
warranties in clause 10 of the Loan Agreement remain true and not
misleading if repeated on the date of this
Agreement.
|
|
4.2
|
Repetition of Finance Document
representations and warranties. The Borrower and each of
the other Security Parties represents and warrants to the Creditor Parties
that the representations and warranties in the Finance Documents (other
than the Loan Agreement) to which it is a party remain true and not
misleading if repeated on the date of this
Agreement.
|
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE
DOCUMENTS
|
|
5.1
|
Specific amendments to Loan
Agreement. With effect on and from the Effective Date
the Loan Agreement shall be amended as
follows:
|
|
(a)
|
By
redesignating Clauses 1.2, 1.3, 1.4, 1.5 and 1.6 of the Loan Agreement as
Clauses 1.1, 1.2, 1.3, 1.4 and 1.5
respectively;
|
|
(b)
|
by
adding in clause 1.1 of the Loan Agreement, the definitions of “Argo”,
“Mortgage Amendment”, “Named Ships”, “Replacement Ship”, “Replacement Ship
Advance”, “Replacement Ship MOA” and “Replacement Ship Seller” included in
Clause 1.2 hereof;
|
|
(c)
|
by
adding in clause 1.1 of the Loan Agreement all of the following new
definitions;
|
“Classical” means Classical
Owning Company Limited, a corporation incorporated and existing under the laws
of the Republic of the Xxxxxxxx Islands and having its registered office at
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands
MH 96960;
“Consolidation Date” has the
meaning given to it in Clause 8.3;
“Human” means Human Owning
Company Limited, a corporation incorporated and existing under the laws of the
Republic of the Xxxxxxxx Islands and having its registered office at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH
96960;
“Named Ship Earnings Account
Pledge” means, in relation to each Named Ship, a pledge agreement
creating security in favour of the Creditor Parties in respect of the Earnings
Account for that Named Ship, in such form as the Lenders may approve or require
and in the plural means all of them;
“Named Ship Owner”
means:
(a) in
the case of “DELRAY”, Classical;
(b) in
the case of “ESTEPONA”, Human; and
(c) in
the case of “FORMENTERA”, Paternal,
and
in the plural means all of them;
“Paternal” means Paternal
Owning Company Limited, a corporation incorporated and existing under the laws
of the Republic of the Xxxxxxxx Islands and having its registered office at
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands
MH 96960;
“Replacement Ship Advance
Commitment” means, in relation to a Lender, the amount set opposite its
name in the fourth column of Schedule 1, Part A, 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 Replacement Ship Advance
Commitments” means the aggregate of the Replacement Ship Advance
Commitments of all the Lenders);
“Replacement Ship Earnings
Account” means an account in the name of Argo, with the Agent in Hamburg
designated “Liberty One - Earnings Account”, or any other account (with that or
another office of the Agent) which is designated by the Agent as the Replacement
Ship Earnings Account for that Ship for the purposes of this
Agreement;
“Replacement Ship Earnings Account
Pledge” means a pledge agreement creating security in favour of the
Creditor Parties in respect of the Replacement Ship Earnings Account, in such
form as the Lenders may approve or require;
“Total Participation” means, in
relation to a Lender on or after the Consolidation Date, the amount set opposite
its name in the fifth column of Schedule 1, Part A, representing the
consolidated total participation of that Lender in the Loan;”
|
(d)
|
by
adding in the second line of the definition of “Additional Advance” in
Clause 1.1 of the Loan Agreement, after the words “purchase price of an
Additional Ship” the words “or a Named
Ship”;
|
|
(e)
|
by
adding a new subparagraph (iii) in paragraph (a) of the definition of
“Availability Period” in Clause 1.1 of the Loan Agreement as
follows:
|
“(iii) the
Replacement Ship Advance, 31 December 2006; and”,
and
re-designating the current subparagraph (iii) as subparagraph (iv);
|
(f)
|
by
replacing the figure “$17,226,457.40” in paragraph (a) of the definition
of “Balloon Instalment” in Clause 1.1 of the Loan Agreement with the
figure “$20,150,840.63”;
|
|
(g)
|
by
replacing in the second line of the definition of “Credit Facility
Commitment” in Clause 1.1 of the Loan Agreement the word “fourth” with the
word “fifth”;
|
|
(h)
|
by
adding in paragraph (a) of the definition of “Deed of Covenant” in Clause
1.1 of the Loan Agreement after the words “in relation to each Existing
Ship” the words “, the Replacement Ship, each Named
Ship”;
|
|
(i)
|
by
adding to the definition of “Finance Documents” in Clause 1.1 of the Loan
Agreement the following paragraphs:
|
“(t) the
Named Ship Earnings Account Pledges;
(u) the
Replacement Ship Earnings Account Pledge;
(v) the
Mortgage Amendments;”
and
re-designating the current paragraph (t) as paragraph (w);
|
(j)
|
by
adding in paragraph (a) of the definition of “Mortgage” in Clause 1.1 of
the Loan Agreement after the words “in relation to each Existing Ship” the
words “, the Replacement Ship, each Named
Ship”;
|
|
(k)
|
by
adding to the definition of “Owner” in Clause 1.1 of the Loan Agreement
the following additional
paragraphs:
|
“(c) the
Replacement Ship, Argo;
(d) a
Named Ship, the Named Ship Owner of that Ship; and”
and
re-designating the current paragraph (c) as paragraph (e) and removing the words
“(h)” from the start of the final paragraph of the definition;
|
(l)
|
by
adding to the definition of “Ships” in Clause 1.1 of the Loan Agreement
after the words “together, the Existing Ships,” the words “the Replacement
Ship, the Named Ships,”;
|
|
(m)
|
by
deleting the definition of “Term Loan” in Clause 1.1 of the Loan Agreement
and replacing it with the following new
definition:
|
“Term Loan” means an amount of
up to $90,253,595.59 (representing the maximum aggregate principal amount of the
Refinancing Advance, the Replacement Ship Advance and the Identified Ship
Advance) or the aggregate principal amount of the Refinancing Advance, the
Replacement Ship Advance and the Identified Ship Advance for the time being
outstanding under this Agreement;”;
|
(n)
|
by
replacing the figure “$110,000,000” in Clause 2.1 of the Loan Agreement
with the figure “$112,587,543.11”;
|
|
(o)
|
by
adding a new paragraph (c) to Clause 2.2 of the Loan Agreement as
follows:
|
|
|
“(c)
|
the
Replacement Ship Advance in the proportion which, as at the Drawdown Date
for such Advance, its Replacement Ship Advance Commitment bears to the
Total Replacement Ship Advance
Commitments.”;
|
|
(p)
|
by
deleting paragraph (e) of Clause 4.2 of the Loan Agreement and replacing
it with the following new
paragraph:
|
|
|
“(e)
|
the
Refinancing Advance, the Identified Ship Advance and the Replacement Ship
Advance shall not in aggregate exceed 13 per cent. of the aggregate Market
Values of the Existing Ships, the Identified Ship and the Replacement Ship
(determined in accordance with the valuations referred to in Schedule 5,
Part A, paragraph 12 (in the case of the Existing Ships), Schedule 5, Part
B, paragraph 9 (in the case of the Identified Ship) and Schedule 5, Part
D, paragraph 5 (in the case of the Replacement
Ship));”
|
|
(q)
|
by
adding a new paragraph (g) in Clause 4.2 of the Loan Agreement as
follows:
|
|
|
“(g)
|
the
Replacement Ship Advance shall not exceed the lesser of (i) $1,638,135.59
and (ii) 12 per cent. of the aggregate Market Value of the Replacement
Ship (as determined in accordance with the valuations referred to in
Schedule 5, Part D, paragraph 5) and shall be applied in financing part of
the purchase price of the Replacement
Ship;”
|
and
re-designating the current paragraph (g) as paragraph (h), and the current
paragraph (h) as paragraph (i);
|
(r)
|
by
replacing the figure “$97,500,000” in subparagraph (i) of Clause 8.1(a) of
the Loan Agreement with the figure
“$90,253,595.59”;
|
|
(s)
|
by
adding in the third line of the hanging paragraph below Clause 8.1(a)(ii)
of the Loan Agreement after the words “the acquisition of an Additional
Ship” the words “or a Named Ship”;
|
|
(t)
|
by
adding to the definition of “B” in Clause 8.1(b) of the Loan Agreement
after the words “in the case of an Additional Ship” the words “or a Named
Ship”;
|
|
(u)
|
by
converting the text of Clause 8.3 of the Loan Agreement into paragraph (a)
of that Clause, and by adding the following new paragraph (b) to that
Xxxxxx:
|
|
|
“(b)
|
On
the Consolidation Date, the Agent shall send to all the Creditor Parties
and the Borrower a schedule specifying the Total Participation of each
Lender in the Loan and this schedule shall thereafter be substituted for,
and replace, the schedule listing the Lenders and their Commitments set
out in Schedule 1, Part A.
|
For
the purpose of paragraph (b) of this Clause 8.3, “Consolidation Date” means the
earlier of (i) the Drawdown Date relating to the Additional Advance for the
final Named Ship to be refinanced and (ii) 30 March 2007.”
such
new Schedule 1, Part A to be in the form set out in the Appendix I to this
Agreement;
|
(v)
|
by
adding to the end of Clause 9.1(c) of the Loan Agreement the following
words:
|
“Provided that in the case of a
Drawdown Date relating to an Additional Advance for a Named Ship, paragraphs 4,
5 and 7(a) of Schedule 5, Part C, shall not apply;”
|
(w)
|
by
adding to Clause 9.1 of the Loan Agreement a new paragraph (d) as
follows:
|
|
|
“(d)
|
that,
on or before the Drawown Date relative to the Replacement Ship Advance,
the Agent receives the documents described in Part D of Schedule 5 in form
and substance satisfactory to the Agent and its
lawyers;”
|
|
(x)
|
by
adding in the third line of Clause 14.2 of the Loan Agreement after the
words “in the case of each Existing Ship” the words “, the Replacement
Ship, each Named Ship”;
|
|
(y)
|
by
adding in the second line of paragraph (c) of Clause 14.3 of the Loan
Agreement after the words “in the case of each Existing Ship” the words “,
the Replacement Ship, each Named
Ship”;
|
|
(z)
|
by
replacing Schedule 4 of the Loan Agreement with a new schedule in the form
set out in Appendix II to this
Agreement;
|
|
(aa)
|
by
adding a new Part D to Schedule 5 to the Loan Agreement as
follows:
|
“PART
D
The
following are the documents referred to in Clause 9.1(d).
|
1
|
A
duly executed original of:
|
|
(a)
|
the
Mortgage, the Deed of Covenant and the General Assignment relating to the
Replacement Ship (and of each document to be delivered under each of
them);
|
|
(b)
|
the
Replacement Ship Earnings Account Pledge;
and
|
|
(c)
|
the
Management Agreement Assignment relating to the Replacement
Ship.
|
2 A
copy of the Replacement Ship MOA and documentary evidence that:
|
(a)
|
the
Replacement Ship has been unconditionally delivered to and accepted by
Xxxx under the Replacement Ship MOA and the full purchase price payable
under that MOA (in addition to the part to be financed by the Replacement
Ship Advance) has been duly paid, together with a copy of the bill of sale
and the other documents delivered by the Replacement Ship Seller
thereunder;
|
|
(b)
|
the
Replacement Ship is definitively and permanently registered in the name of
Argo under Maltese flag at the port of
Valletta;
|
|
(c)
|
the
Replacement Ship is in the absolute and unencumbered ownership of Argo,
save as contemplated by the Finance Documents relative to the Replacement
Ship;
|
|
(d)
|
the
Replacement Ship maintains the highest available class with Lloyd’s
Register of Shipping (or such other first-class classification society
which is a member of IACS as the Agent may approve) free of all overdue
recommendations and conditions of such classification
society;
|
|
(e)
|
the
Mortgage relating to the Replacement Ship has been duly registered against
that Ship as a valid first priority Maltese statutory ship mortgage in
accordance with the laws of Malta;
and
|
|
(f)
|
the
Replacement Ship is insured in accordance with the provisions of this
Agreement and all requirements therein in respect of insurances have been
complied with.
|
|
3
|
A
copy of the Management Agreement and a duly executed original of the
Manager’s Undertaking in relation to the Replacement
Ship.
|
4 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 Replacement Ship and the applicable
Approved Manager certified as true and in effect by Xxxx;
and
|
|
(b)
|
the
ISPS Code Documentation in respect of the Replacement Ship certified as
true and in effect by Xxxx.
|
|
5
|
Two
valuations (at the cost of the Borrower) of the Replacement Ship,
addressed to the Agent, stated to be for the purpose of this Agreement and
dated not earlier than 15 days before the Drawdown Date for the
Replacement Ship Advance, each from an Approved
Broker.
|
|
6
|
Favourable
legal opinions from lawyers appointed by the Agent on such matters
concerning the laws of Malta and such other relevant jurisdictions as the
Agent may require.
|
|
7
|
A
favourable opinion from an independent insurance consultant acceptable to
the Agent on such matters relating to the insurances of the Replacement
Ship as the Agent may require.”
|
|
(bb)
|
by
replacing the figure “$110,000,000” in paragraph 1 of the form of Transfer
Certificate set out in Schedule 6 of the Loan Agreement with the figure
“$112,587,543.11”;
|
|
(cc)
|
by
replacing the figure “$110,000,000” in the form of Designation Notice set
out in Schedule 7 of the Loan Agreement with the figure
“$112,587,543.11”;
|
|
(dd)
|
by
replacing the figure “$110,000,000” in the first paragraph of the form of
Compliance Certificate set out in Schedule 7 of the Loan Agreement with
the figure “$112,587,543.11”;
|
|
(ee)
|
the
definition of, and references throughout to, each Finance Document shall
be construed as if the same referred to that Finance Document as amended
and supplemented by this Agreement;
and
|
|
(ff)
|
by
construing references throughout to “this Agreement”, “hereunder” and
other like expressions as if the same referred to the Loan Agreement as
amended and supplemented by this
Agreement.
|
|
5.2
|
Amendments to Finance
Documents. With effect on and from the Effective Date
each of the Finance Documents other than the Loan Agreement shall be, and
shall be deemed by this Agreement to have been, amended as
follows:
|
|
(a)
|
the
definition of, and references throughout each of the Finance Documents to,
the Loan Agreement and any of the other Finance Documents shall be
construed as if the same referred to the Loan Agreement and those Finance
Documents as amended and supplemented by this Agreement;
and
|
|
(b)
|
by
construing references throughout each of the Finance Documents to “this
Agreement”, “this Deed”, “hereunder and other like expressions as if the
same referred to such Finance Documents as amended and supplemented by
this Agreement.
|
|
5.3
|
Finance Documents to remain in
full force and effect. The Finance Documents shall
remain in full force and effect as amended and supplemented
by:
|
|
(a)
|
the
amendments to the Finance Documents contained or referred to in Clauses
5.1 and 5.2; and
|
|
(b)
|
such
further or consequential modifications as may be necessary to give full
effect to the terms of this
Agreement.
|
|
6
|
FURTHER
ASSURANCES
|
|
6.1
|
Xxxxxxxx’s
and each Security Party’s obligation to execute further documents
etc. The Borrower and each Security Party
shall:
|
|
(a)
|
execute
and deliver to the Security Trustee (or as it may direct) any assignment,
mortgage, power of attorney, proxy or other document, governed by the law
of England or such other country as the Security Trustee may, in any
particular case, specify;
|
|
(b)
|
effect
any registration or notarisation, give any notice or take any other
step,
|
|
|
which
the Agent may, by notice to the Borrower, specify for any of the purposes
described in Clause 6.2 or for any similar or related
purpose.
|
|
6.2
|
Purposes of further
assurances. Those purposes
are:
|
|
(a)
|
validity
and effectively to create any Security Interest or right of any kind which
the Security Trustee intended should be created by or pursuant to the Loan
Agreement or any other Finance Document, each as amended and supplemented
by this Agreement, and
|
|
(b)
|
implementing
the terms and provisions of this
Agreement.
|
|
6.3
|
Terms of further
assurances. The Security Trustee may specify the terms
of any document to be executed by the Borrower or any Security Party under
Clause 6.1, and those terms may include any covenants, powers and
provisions which the Security Trustee considers appropriate to protect its
interests.
|
|
6.4
|
Obligation to comply with
notice. The Borrower or any Security Party shall comply
with a notice under Clause 6.1 by the date specified in the
notice.
|
|
7
|
FEES
AND EXPENSES
|
|
7.1
|
Fee. On the
date of this Agreement, the Borrower shall pay to the Agent certain
facility fees set out in the letter addressed to the Agent from the
Borrower and dated the same date as this
Agreement.
|
|
7.2
|
Expenses. The
provisions of clause 20 (fees and expenses) of the Loan Agreement shall
apply to this Agreement as if they were expressly incorporated in this
Agreement with any necessary
modifications.
|
|
8
|
COMMUNICATIONS
|
|
8.1
|
General. The
provisions of clause 28 (notices) of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.
|
|
9
|
SUPPLEMENTAL
|
|
9.1
|
Counterparts. This
Agreement may be executed in any number of
counterparts.
|
|
9.2
|
Third Party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
10
|
LAW
AND JURISDICTION
|
|
10.1
|
Governing
law. This Agreement shall be governed by and construed
in accordance with English law.
|
|
10.2
|
Incorporation of the Loan
Agreement provisions. The provisions of clause 30 (law
and jurisdiction) of the Loan Agreement, as amended and supplemented by
this Agreement, shall apply to this Agreement as if they were expressly
incorporated in this Agreement with any necessary
medications.
|
THIS AGREEMENT has been duly
executed as a Deed on the date stated at the beginning of this
Agreement.
APPENDIX
I
LENDERS,
COMMITMENTS AND FINAL PARTICIPATIONS
|
Lender
|
Lending
Office
|
Replacement
Ship
Advance
Commitement
(US
Dollars)
|
Credit
Facility
Commitment
(US Dollars)
|
Total
Participation
in
Loan
(US
Dollars)
|
|
HSH
Nordbank XX
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
50
D-20095
Hamburg
Germany
|
819,067.80
|
11,166,974
|
56,293,771.75
|
|
The
Governor and Company of
the
Bank of Scotland
|
00
Xxxx Xxxx Xxxxxx
Xxxxxxxxx
XX0 0XX
Xxxxxxxx
|
819,067.80
|
11,166,974
|
56,293,771.75
|
APPENDIX
II
REPAYMENT
OF TERM LOAN
|
Repayment
Date
|
Amount
of Repayment Instalment ($)
|
Maximum
Outstanding Amount of Term Loan following repayment ($)
|
|
|
1
|
28
February 2007
|
3,347,823.86
|
109,239,719.25
|
|
2
|
31
May 2007
|
3,347,823.86
|
105,891,895.39
|
|
3
|
31
August 2007
|
2,780,773.74
|
103,111,121.66
|
|
4
|
30
November 2007
|
2,780,773.74
|
100,330,347.92
|
|
5
|
29
February 2008
|
2,780,773.74
|
97,549,574.19
|
|
6
|
31
May 2008
|
2,780,773.74
|
94,768,800.45
|
|
7
|
31
August 2008
|
2,751,523.74
|
92,017,276.72
|
|
8
|
30
November 2008
|
2,751,523.74
|
89,265,752.98
|
|
9
|
28
February 2009
|
2,751,523.74
|
86,514,229.25
|
|
10
|
31
May 2009
|
2,751,523.74
|
83,762,705.51
|
|
11
|
31
August 2009
|
2,446,189.05
|
81,316,516.46
|
|
12
|
30
November 2009
|
2,446,189.05
|
78,870,327.41
|
|
13
|
28
February 2010
|
2,446,189.05
|
76,424,138.36
|
|
14
|
31
May 2010
|
2,446,189.05
|
73,977,949.30
|
|
15
|
31
August 2010
|
2,446,189.05
|
71,531,760.25
|
|
16
|
30
November 2010
|
2,446,189.05
|
69,085,571.20
|
|
17
|
28
February 2011
|
2,446,189.05
|
66,639,382.15
|
|
18
|
31
May 2011
|
2,446,189.05
|
64,193,193.10
|
|
19
|
31
August 2011
|
2,446,189.05
|
61,747,004.04
|
|
20
|
30
November 2011
|
2,446,189.05
|
59,300,814.99
|
|
21
|
29
February 2012
|
2,446,189.05
|
56,854,625.94
|
|
22
|
31
May 2012
|
2,446,189.05
|
54,408,436.89
|
|
23
|
31
August 2012
|
2,446,189.05
|
51,962,247.84
|
|
24
|
30
November 2012
|
2,446,189.05
|
49,516,058.79
|
|
25
|
28
February 2013
|
2,446,189.05
|
47,069,869.73
|
|
26
|
31
May 2013
|
2,446,189.05
|
44,623,680.68
|
|
27
|
31
August 2013
|
2,446,189.05
|
42,177,491.63
|
|
28
|
30
November 2013
|
2,321,903.34
|
39,855,588.29
|
|
29
|
28
February 2014
|
1,970,474.77
|
37,885,113.53
|
|
30
|
31
May 2014
|
1,970,474.77
|
35,914,638.76
|
|
31
|
31
August 2014
|
1,970,474.77
|
33,944,163.99
|
|
32
|
30
November 2014
|
1,970,474.77
|
31,973,689.23
|
|
33
|
28
February 2015
|
1,970,474.77
|
30,003,214.46
|
|
34
|
31
May 2015
|
1,970,474.77
|
28,032,739.70
|
|
35
|
31
August 2015
|
1,970,474.77
|
26,062,264.93
|
|
36
|
30
November 2015
|
1,970,474.77
|
24,091,790.16
|
|
37
|
29
February 2016
|
1,970,474.77
|
22,121,315.40
|
|
38
|
31
May 2016
|
1,970,474.77
|
20,150,840.63
|
|
Balloon
Instalment
|
31
May 2016
|
20,150,840.63
|
0
|
APPENDIX
III
LIST
OF SHIPS (FOLLOWING THE CONSOLIDATION OF THE TERM LOAN)
|
Number
|
Name of
vessel
|
Deadweight
|
Year Built
|
|
1
|
Manasota
|
171,061
|
2004
|
|
2
|
Alameda
|
170,662
|
2001
|
|
3
|
Shibumi
|
166,058
|
1984
|
|
4
|
Netadola
|
149,475
|
1993
|
|
5
|
Mendocino
|
76,623
|
2002
|
|
6
|
Coronado
|
75,706
|
2000
|
|
7
|
Waikiki
|
75,473
|
1995
|
|
8
|
Mostoles
|
75,395
|
1981
|
|
9
|
Solana
|
75,100
|
1995
|
|
10
|
Sonoma
|
74,786
|
2001
|
|
11
|
Catalina
|
74,432
|
2005
|
|
12
|
Samsara
|
73,688
|
1999
|
|
13
|
Padre
|
73,601
|
2004
|
|
14
|
Toro
|
73,035
|
1995
|
|
15
|
Xanadu
|
72,270
|
1999
|
|
16
|
La Jolla
|
72,126
|
1997
|
|
17
|
Lacerta
|
71,862
|
1994
|
|
18
|
Redondo
|
74,716
|
2000
|
|
19
|
Paragon
|
71,259
|
1995
|
|
20
|
Iguana
|
70,349
|
1996
|
|
21
|
Daytona
|
69,703
|
1989
|
|
22
|
Lanikai
|
68,676
|
1998
|
|
23
|
Tonga
|
66,798
|
1984
|
|
24
|
Flecha
|
65,081
|
1982
|
|
25
|
Striggla
|
64,747
|
1982
|
|
26
|
Alona
|
48,640
|
2002
|
|
27
|
Matira
|
45,863
|
1994
|
|
28
|
Xxxxx
Oldendorff
|
55,566
|
2005
|
|
29
|
Maganari
|
75,941
|
2001
|
|
30
|
Estepona
|
70,003
|
1994
|
|
31
|
Delray
|
70,029
|
1994
|
|
32
|
Formentera
|
70,015
|
1996
|
|
33
|
Lanzarote
|
73,008
|
1996
|
|
34
|
Ligari
|
75,583
|
2004
|
EXECUTION
PAGES
THE
BORROWERS
SIGNED
by )
for
and on behalf
of )
THE
LENDERS
LENDERS
SIGNED
by )
for
and on behalf
of
)
HSH NORDBANK
AG )
SIGNED
by )
for
and on behalf
of )
THE GOVERNOR AND COMPANY
OF )
THE BANK OF
SCOTLAND )
AGENT
SIGNED
by )
for
and on behalf
of )
HSH NORDBANK
AG )
SECURITY
TRUSTEE
SIGNED
by )
for
and on behalf
of )
HSH NORDBANK
AG )
LEAD
ARRANGER/LEAD BOOKRUNNER
SIGNED
by )
for
and on behalf
of )
HSH NORDBANK
AG )
JOINT
BOOKRUNNNER
SIGNED
by )
for
and on behalf
of )
THE GOVERNOR AND
COMPANY )
OF THE BANK OF
SCOTLAND )
SWAP
BANKS
SIGNED
by )
for
and on behalf
of )
HSH NORDBANK
AG )
SIGNED
by )
for
and on behalf
of )
HBOS TREASURY SERVICES
PLC
)
Witness
to all
the )
above
signatures )
Name:
Address:
COUNTERSIGNED this
day of 2006
for and on behalf of the below companies each of which, by its execution hereof,
confirms and acknowledges that it has read and understood the terms and
conditions of this supplemental letter, that it agrees in all respects to the
same and that the Finance Documents to which it is a party shall remain in full
force and effect and shall continue to stand as security for the obligations of
the Borrower under the Loan Agreement.
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
WEALTH
MANAGEMENT
INC. HELIUM
SHIPPING COMPANY
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
HYDROGEN
SHIPPING
COMPANY SILICON
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
OXYGEN
SHIPPING
COMPANY ANNAPOLIS
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
LANCAT
SHIPPING
COMPANY
XXXXX SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
MALVINA
SHIPPING
COMPANY ARLETA
NAVIGATION COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
SELMA
SHIPPING
COMPANY ROYERTON
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
SAMSARA
SHIPPING
COMPANY LANSAT
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
FARAT
SHIPPING
COMPANY MADRAS
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
IGUANA
SHIPPING
COMPANY BORSARI
SHIPPING COMPANY
LIMITED LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
ONIL
SHIPPING
COMPANY ZATAC
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
FABIANA
NAVIGATION
COMPANY XXXX
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of
for and on behalf of
XXXXXXX
NAVIGATION
COMPANY PLATAN
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________ __________________________________
for
and on behalf
of for
and on behalf of
XXXXXX
SHIPPING
COMPANY XXXXXX
SHIPPING COMPANY
LIMITED
LIMITED
__________________________________
for
and on behalf of
CELINE
SHIPPING
COMPANY
LIMITED
