DATED 2008 ENERGY INFRASTRUCTURE MERGER CORPORATION (as Borrower) - and - THE BANKS AND FINANCIAL INSTITUTION LISTED IN SCHEDULE 1 (as Lenders) - and - DVB GROUP MERCHANT BANK (ASIA) LTD (as Agent) - and - DVB BANK AG (as Swap Provider) - and - DVB...
Execution
Copy
DATED
2008
(as
Borrower)
-
and -
THE
BANKS AND FINANCIAL INSTITUTION LISTED IN SCHEDULE 1
(as
Lenders)
-
and -
DVB
GROUP
MERCHANT BANK (ASIA) LTD
(as
Agent)
-
and -
DVB
BANK AG
(as
Swap Provider)
-
and -
DVB
GROUP MERCHANT BANK (ASIA) LTD
(as
Security Agent)
___________________________________
US$90,000,000
SECURED
in
respect of certain single-hull VLCCs
___________________________________
XXXXXXXXXX
XXXXXXX
Xx.
0 Xxxxxxx Xxxxx
#49-00
OUB Centre
Singapore
048616
Tel:
x00 0000 0000
Fax:
x00 0000 0000
Ref
: SH1479
CONTENTS
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Page
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1
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Definitions
and Interpretation
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1
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2
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The
Loan and its Purpose
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21
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3
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Conditions
of Utilisation
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22
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4
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Availability
date and Advance
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23
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5
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Repayment
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24
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6
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Prepayment
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25
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7
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Interest
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27
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8
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Indemnities
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31
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9
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Fees
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35
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10
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Security
and Application of Moneys
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36
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11
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Representations
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43
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12
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Undertakings
and Covenants
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46
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13
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Events
of Default
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59
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14
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Assignment and Sub-Participation
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64
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15
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The
Agent, the Security Agent and the Lenders
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68
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16
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Set-Off
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78
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17
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Payments
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78
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18
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Notices
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80
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19
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Partial
Invalidity
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82
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20
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Remedies
and Waivers
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82
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21
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Miscellaneous
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82
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22
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Law and Jurisdiction
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84
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SCHEDULE
1: The Lenders and the Commitments
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86
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SCHEDULE
2: Collateral Owners/Vessels
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87
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SCHEDULE
3: Charters
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88
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SCHEDULE
4: Existing Financing
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89
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SCHEDULE
5: Conditions Precedent and Subsequent
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90
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Part
I(a): General conditions precedent
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90
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Part
I(b): Vessel Tranche conditions precedent
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93
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Part
II: Conditions subsequent
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95
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SCHEDULE
6:
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96
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Vessel
A Tranche repayment schedule
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96
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Vessel
B Tranche repayment schedule
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97
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Vessel
C Tranche repayment schedule
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98
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Vessel
D Tranche repayment schedule
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99
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SCHEDULE
7: Form of Drawdown Notice
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100
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SCHEDULE
8: Form of Transfer Certificate
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101
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SCHEDULE
9: Form of Compliance Certificate
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105
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| Dated: |
2008
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BETWEEN:
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(1)
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ENERGY
INFRASTRUCTURE MERGER CORPORATION (tbn "VAN ASIA TANKERS
CORPORATION"),
a
corporation incorporated under the laws of the Xxxxxxxx Islands
whose
registered office is at Trust Company Complex, Ajeltake Road, Ajeltake
Island, P.O. Box 1405, Majuro, Xxxxxxxx Islands, MH96960 (the "Borrower");
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(2)
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the
banks listed in Schedule 1, each
acting as a lender through its office at the
address indicated against its name in Schedule 1 (together the "Lenders"
and each a
"Lender");
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(3)
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DVB
MERCHANT BANK (ASIA) LTD,
acting as agent through its office at 00 Xxxxxxxx Xxxx, #00-00,
Xxxxxxxxx
000000 (in that capacity the "Agent");
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(4)
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DVB
BANK AG,
acting as swap provider through its office at Xxxxxxxxx-Xxxxx-Xxxxxx
0-00,
00000 Xxxxxxxxx, Xxxx, Xxxxxxxx (the "Swap
Provider");
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(5)
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DVB
GROUP MERCHANT BANK (ASIA) LTD,
acting as security agent through its office at 00 Xxxxxxxx Xxxx,
#00-00
Xxxxxxxxx 000000 (in that capacity the "Security
Agent").
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WHEREAS:
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(A)
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Each
Collateral Owner is or will become a wholly owned subsidiary of
the
Borrower and is the registered owner of the relevant Vessel set
out
opposite its name in Schedule 2.
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(B)
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Each
of the Lenders has
agreed to advance to the Borrower its
Commitment (aggregating, with all the other Commitments, up
to $90,000,000)
which the Borrower will utilise to (i) assist the Collateral Owners
in
refinancing the Existing Indebtedness and (ii) to assist the Borrower
with
its working capital requirements.
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IT IS AGREED
as
follows:
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1
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Definitions
and Interpretation
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1.1 In
this
Agreement:
"Accounts"
means
the Earnings Accounts and the Retention Accounts.
"Accounts
Charges"
means
the deeds of charge from the Collateral Owners in the Agreed Form referred
to in
Clause 10.1.5 and "Accounts
Charge"
means
any one of them.
"Administration"
has
the
meaning given to it in paragraph 1.1.3 of the ISM Code.
"Agreed
Form"
in
relation to any document, means that document in form, substance and terms
approved in writing by the Borrower and the Agent.
"Annex
VI"
means
Xxxxx XX (Regulations for the Prevention of Air Pollution from Ships) to
the
International Convention for the Prevention of Pollution from Ships 1973
(as
modified in 1978 and 1997).
"Approved
Flag"
means
Bahamas, Liberia, Malta and/or Panama.
"Approved
Valuation Brokers"
means
Xxxxxxx, Xxxxxx and Xxxxx Ltd, Fearnleys AS, Arrow Valuations Ltd and Clarkson
Research Services Ltd and/or such other international ship brokers as may
be
agreed in writing between the Borrower and the Agent.
"Assignments"
means
the deeds of assignment from the Collateral Owners in the Agreed Form referred
to in Clause 10.1.3 and "Assignment"
means
any one of them.
"Assignments
of Charter"
means
the deeds of assignment from the Collateral Owners in the Agreed Form referred
to in Clause 10.1.4 and "Assignment
of Charter"
means
any one of them.
"Availability
Termination Date"
means,
subject to Clause 4.1, 30th
June
2008.
"Break
Costs"
for
each
Lender means the amount certified by that Lender as being the amount (if
any) by
which:
| (a) |
the
interest which that Xxxxxx should have received under this Agreement
for
the period from the date of receipt of all or any part of its
participation in the Loan or Unpaid Sum to the last day of the
current
Interest Period in respect of the Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest
Period;
|
2
exceeds:
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(b)
|
the
amount which that Xxxxxx would be able to obtain by placing an
amount
equal to the principal or (as the case may be) the applicable Unpaid
Sum
received by it on deposit with a leading bank in the London Interbank
Market for a period starting on the Business Day following receipt
or
recovery and ending on the last day of the current Interest
Period.
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"Business
Day"
means
(i)
for the purposes of making payments and/or determining exchange or interest
rates and interest periods, a day on which dealings in deposits in Dollars
are
carried on in the London Interbank Market and (other than Saturday or Sunday)
on
which banks are open for general business in London, Singapore, Frankfurt,
Hong
Kong and New York City (or any other relevant place of payment under Clause
17)
and (ii) for the purposes of notices, requests, demands, communications and
other matters, Singapore, Hong Kong, London and Frankfurt.
"Cash
Reserve Amount"
means,
subject to Clause 12.3.18, six hundred and twenty five thousand Dollars
($625,000).
"Charters"
means
each charter set out opposite a Vessel's name in Schedule 3 or, subject to
the
terms of this Agreement, such other charter in excess of twelve (12) months
duration as is or may be entered into by a Collateral Owner during the Facility
Period and "Charter"
means
any one of them.
"Charterers"
means
each Charterer set out opposite a Vessel's name in Schedule 3 or, from time
to
time and subject to the terms of this Agreement, any other charterer of a
Vessel
acceptable to the Agent (such acceptance not to be unreasonably withheld
or
delayed) and "Charterer"
means
any one of them.
"Collateral
Account Charges"
means
the second priority deeds of charge from the Double Hull Collateral Owners
in
the Agreed Form referred to in Clause 10.1.10 and "Collateral
Account Charge"
means
any one of them.
"Collateral
Assignments"
means
the second priority deeds of assignment from the Double Hull Collateral Owners
in the Agreed Form referred to in Clause 10.1.8 and "Collateral
Assignment"
means
any one of them.
3
"Collateral
Assignments of Charter"
means
the second priority deeds of assignment from the Double Hull Collateral Owners
in the Agreed Form referred to in Clause 10.1.9 and "Collateral
Assignment of Charter"
means
any one of them.
"Collateral
Deeds of Covenants"
means
the second priority deeds of covenants from the Double Hull Collateral Owners
in
the Agreed Form referred to in Clause 10.1.7 and "Collateral
Deed of Covenants"
means
any one of them.
"Collateral
Guarantees"
means
the guarantees and indemnities referred to in Clause 10.1.6.
"Collateral
Mortgages"
means
the second priority statutory mortgages from the Double Hull Collateral Owners
in the Agreed Form referred to in Clause 10.1.7 together with the Collateral
Deeds of Covenants in the Agreed Form referred to in Clause 10.1.7 and
"Collateral
Mortgage"
means
any one of them.
"Collateral
Owners"
means
the companies listed in Schedule 2 under the heading "Collateral Owners"
each a
company incorporated under the laws of the Hong Kong Special Administrative
Region of the People's Republic of China ("Hong
Kong")
whose
registered office is at Suite 801, 8/F Asian House, 0 Xxxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxx and "Collateral
Owner"
means
any one of them.
"Commitment"
means,
in relation to a Lender, the amount of the Loan which that Xxxxxx agrees
to
advance to the Borrower as its several liability as indicated against the
name
of that Lender in Schedule 1, as such amount may be reduced by any relevant
term
of this Agreement and
"Commitments"
means
more than one of them.
"Compliance
Certificate"
means a
certificate substantially in the form set out in Schedule 9.
"Contribution"
means,
in relation to a Lender, the principal amount of the Loan owing by the Borrower
to that Lender under this Agreement at any relevant time.
"Coordination
Agreement"
means a
deed of coordination in the Agreed Form made or to be made between the Finance
Parties, the Double Hull Finance Parties, the Borrower, the Collateral Owners
and the Double Hull Collateral Owners coordinating, inter alia, certain rights
and obligations of the Finance Parties and the Double Hull Finance Parties
under
the Finance Documents and the Double Hull Finance Documents.
4
"Credit
Support Document"
means
any document described as such in the Master Agreement and, where the context
permits, any other document referred to in any Credit Support Document which
has
the effect of creating an Encumbrance in favour of any of the Finance
Parties.
"Credit
Support Provider"
means
any person (other than the Borrower) described as such in the Master
Agreement.
"Currency
of Account"
means,
in relation to any payment to be made to a
Finance
Party under
a
Finance Document, the currency in which that payment is required to be made
by
the terms of that Finance Document.
"Deeds
of Covenants"
means
the deeds of covenants from the Collateral Owners in the Agreed Form referred
to
in Clause 10.1.2 and "Deed
of Covenants"
means
any one of them.
"Default"
means
an Event of Default or any event or circumstance specified in Clause
13.1
which
would (with the expiry of a grace period or the giving of notice, or any
combination of any of the foregoing) be an Event of Default.
"DOC"
means,
in relation to the ISM Company, a valid Document of Compliance issued for
the
ISM Company
by the
Administration under paragraph 13.2 of the ISM Code.
"Dollars"
and
"$"
each
means available and freely transferable and convertible funds in lawful currency
of the United States of America.
"Double
Hull Accounts"
shall
have the meaning ascribed to "Accounts" in the Double Hull Loan
Agreement.
"Double
Hull Charters"
shall
have the meaning ascribed to "Charters" in the Double Hull Loan
Agreement.
"Double
Hull Collateral Owners"
means
Shinyo Loyalty Limited, Shinyo Navigator Limited, Shinyo Dream Limited, Shinyo
Xxxxxxx Limited and Shinyo Ocean Limited.
5
"Double
Hull Facility"
means
the facility advanced or to be advanced by the Double Hull Finance Parties
pursuant to the terms of the Double Hull Loan Agreement.
"Double
Hull Finance Documents"
means
the Finance Documents (as that term is defined in the Double Hull Loan
Agreement).
"Double
Hull Finance Parties"
means
the parties, other than the Borrower, as are party to the Double Hull Loan
Agreement.
"Double
Hull Loan Agreement"
means
the loan agreement made or to be made on or about the date hereof between
the
Borrower, the Mandated Lead Arrangers (as defined therein), the banks and
financial institutions listed in Schedule 1 thereto, DVB Group Merchant Bank
(Asia) Ltd as agent, DVB Bank AG, Fortis Bank S.A./N.V. and NIBC Bank N.V.
as
swap providers and DVB Group Merchant Bank (Asia) Ltd as security agent in
connection with a loan facility to be used to refinance the existing
indebtedness of the Double Hull Collateral Owners.
"Double
Hull Substitute Charters"
shall
have the meaning ascribed to "Substitute Charters" in the Double Hull Loan
Agreement.
"Double
Hull Vessels"
shall
have the meaning ascribed to "Vessels" in the Double Hull Loan
Agreement.
"Drawdown
Date"
means
the date on which the relevant Drawing is advanced under Clause 4.
"Drawdown
Notice"
means a
notice substantially in the form set out in Schedule 7.
"Drawing"
means
any part of the Loan advanced or to be advanced pursuant to a Drawdown Notice
and "Drawings"
means
more than one of them.
"Earnings"
means
all hires, freights, pool income and other sums payable to or for the account
of
a Collateral Owner in respect of its Vessel including (without limitation)
any
profit share income, all remuneration for salvage and towage services, demurrage
and detention moneys, contributions in general average, compensation in respect
of any requisition for hire, and damages and other payments (whether awarded
by
any court or arbitral tribunal or by agreement or otherwise) for breach,
termination or variation of any contract for the operation, employment or
use of
such Vessel.
6
"Earnings
Accounts"
means
the bank accounts opened or to be opened in the name of each Collateral Owner
with the Agent (or such other leading bank as may be requested by the Borrower
and, subject to execution of an Accounts Charge in form and substance
satisfactory to the Lenders, agreed to by the Agent (such agreement not to
be
unreasonably withheld)) and designated, whilst such Earnings Account is held
with the Agent, "[Name of Collateral Owner] - Earnings Account", each an
"Earnings
Account".
"EIAC"
means
Energy Infrastructure Acquisition Corp., a corporation incorporated under
the
laws of Delaware.
"Encumbrance"
means a
mortgage, charge, assignment, pledge, lien, or other security interest securing
any obligation of any person or any other preferential agreement or arrangement
having a similar effect but excluding liens arising in the ordinary course
of
trading by operation of law and not by way of contract.
"Event
of Default"
means
any of the events or circumstances set out in Clause 13.1.
"Existing
Finance Parties"
means
the parties, other than the relevant Collateral Owners, listed in Schedule
4
opposite the relevant Collateral Owner under the heading "Existing Financing"
and "Existing
Finance Party"
means
any one of them.
"Existing
Indebtedness"
means
all amounts owed by a Collateral Owner to an Existing Finance Party under
or
pursuant to (i) the Existing Loan Agreement to which that Collateral Owner
is a
party or (ii) an Inter-Company Loan.
"Existing
Loan Agreements"
means
each loan agreement listed in Schedule 4 opposite a relevant Collateral Owner
under the heading "Existing Financing" and "Existing
Loan Agreement"
means
any one of them.
"Existing
Security"
means
the security granted in favour of an Existing Finance Party under or pursuant
to
an Existing Loan Agreement.
7
"Extended
Availability Termination Date"
means
31st
July
2008 or such later date as may be agreed by the Borrower and all the
Lenders.
"Facility
Period"
means
the period beginning on the date of this Agreement and ending on the date
when
the whole of the Indebtedness has been paid in full and the Security Parties
have ceased to be under any further actual or contingent liability to
the
Finance
Parties under
or
in connection with the Finance Documents.
"Fair
Market Value"
means,
in relation to a Vessel, the market value in Dollars of that Vessel determined
as being the average of two (2) valuations obtained by the Agent from two
(2)
Approved Valuation Brokers, one (1) selected by the Agent and one (1) selected
by the Borrower (provided that if the Borrower does not make a selection
when
requested to do so by the Agent in writing such Approved Valuation Broker
shall
be selected by the Agent), such valuations to be made without, unless required
otherwise by the Agent (acting reasonably and so as to ensure no interruption
of
a Vessel's sailing schedule), physical inspection and on the basis of a sale
for
prompt delivery for cash at arms length on normal commercial terms as between
a
willing buyer and a willing seller without taking into account the benefit
or
burden of any Charter or other engagement concerning that Vessel.
"Fee
Letter"
means
any letter or letters made or to be made between the Agent and the Borrower
setting out any of the fees payable in accordance with Clause 9.
"Finance
Documents"
means
this Agreement, the Master Agreement, the
Security Documents, any Fee Letter, the Coordination Agreement and any other
document designated as such by the Agent and the Borrower and "Finance
Document"
means
any one of them.
"Finance
Parties"
means
the Agent, the Security Agent, the Swap Provider and the Lenders and
"Finance
Party"
means
any one of them.
"Financial
Indebtedness"
means
any obligation for the payment or repayment of money, whether present or
future,
actual or contingent, in respect of:
| (a) |
moneys
borrowed;
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| (b) |
any
acceptance credit;
|
| (c) |
any
bond, note, debenture, loan stock or similar debt
instrument;
|
8
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(d)
|
any
finance or capital lease (otherwise then in respect of equipment
used in
the ordinary course of business payments for which are not material
in the
context of the transaction contemplated by the Finance
Documents);
|
| (e) |
receivables
sold or discounted (other than on a non-recourse
basis);
|
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(f)
|
deferred
payments for assets or services (other than assets or services
obtained on
normal commercial terms in the ordinary course of
business);
|
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(g)
|
any
derivative transaction protecting against or benefiting from fluctuations
in any rate or price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
|
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(h)
|
any
amount raised under any other transaction (including any forward
sale or
purchase agreement) having the commercial effect of a
borrowing;
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(i)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond,
standby or documentary letter of credit or any other instrument
issued by
a bank or financial institution;
|
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(j)
|
the
amount of any liability in respect of any guarantee or indemnity
for any
of the items referred to in paragraphs (a) to (i) above;
and
|
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(k)
|
any
Inter-Company Loan not specifically falling within paragraphs (a)
to (j)
above.
|
"GAAP"
means
generally accepted accounting principles in the Hong Kong Special Administrative
Region.
"Guarantees"
means
the guarantees and indemnities referred to in Clause 10.1.1.
"IAPPC"
means a
valid international air pollution prevention certificate for a Vessel issued
under Annex VI.
"Indebtedness"
means
the aggregate from time to time of the amount of the Loan outstanding, all
accrued and unpaid interest on the Loan; and all other sums of any nature
(together with all accrued and unpaid interest on any of those sums) payable
to
any of the Finance Parties in accordance with the terms and conditions of
any of
the Finance Documents, including but not limited to, any amounts payable
in
accordance with the terms and conditions of the Master Agreement.
9
"Insurances"
means
all policies and contracts of insurance (including all entries in protection
and
indemnity or war risks associations) which are from time to time taken out
or
entered into in respect of or in connection with a Vessel or her increased
value
and (where the context permits) all benefits under such contracts and policies,
including all claims of any nature and returns of premium.
"Inter-Company
Loan"
means a
loan made by the Borrower to a Collateral Owner or a Double Hull Collateral
Owner or any other Subsidiary of
the
Borrower
or by
one Collateral Owner to the Borrower or another Collateral Owner or a Double
Hull Collateral Owner or any other Subsidiary of the Borrower including,
but not
limited to, any such loan made to assist that Collateral Owner or that Double
Hull Collateral Owner in refinancing its Existing Indebtedness (as that term
is
defined, in the case of a Double Hull Collateral Owner, under the Double
Hull
Loan Agreement).
"Interest
Payment Date"
means
each date for the payment of interest in accordance with
Clause 7.7.
"Interest
Period"
means
each period for the determination and payment of interest selected by the
Borrower or, as the case may be, agreed or selected by the Agent pursuant
to
Clause 7.
"ISM
Code"
means
the International Management Code for the Safe Operation of Ships and for
Pollution Prevention.
"ISM
Company"
means,
at any given time, the company responsible for a Vessel's compliance with
the
ISM Code under paragraph 1.1.2 of the ISM Code.
"ISPS Code"
means
the International Ship and Port Facility Security Code.
"ISPS
Company"
means,
at any given time, the company responsible for a Vessel's compliance with
the
ISPS Code.
"ISSC"
means a
valid international ship security certificate for a Vessel issued under the
ISPS
Code.
10
"LIBOR"
means,
for an
Interest Period:
| (a) |
the
rate per annum equal to the offered quotation for deposits in Dollars
for
a period equal to, or as near as possible equal to, the relevant
Interest
Period which appears on Reuters BBA Page LIBOR 01 at or about 11.00
a.m.
(London time) two (2) London Business Days before the first day
of that
Interest Period (and, for the purposes of this Agreement, "BBA
Page LIBOR 01"
means that Reuters’ page or such other page as may replace that page on
that service for the purpose of displaying rates comparable to
that rate
or on such other service as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying
British Bankers’ Association Interest Settlement Rates for Dollars);
or
|
| (b) |
if
no rate is quoted on BBA Page LIBOR 01, the rate per annum determined
by
the Agent to be the arithmetic mean (rounded upwards, if necessary,
to the
nearest one-sixteenth of one per cent.) of the rates per annum
notified to
the Agent by each Reference Bank as the rate at which deposits
in Dollars
are offered to that Reference Bank by leading banks in the London
Interbank Market at that Reference Bank’s request at or about 11.00 a.m.
(London time) two (2) London Business Days before the first day
of that
Interest Period for a period equal to that Interest Period and
for
delivery on the first Business Day
thereof.
|
"Loan"
means
the aggregate amount of the Vessel Tranches owing to the Lenders under this
Agreement of any relevant time.
"Loan
to Value Ratio"
means
the percentage which the Loan (less the aggregate Cash Reserve Amount) bears
to
the Fair Market Value of the Vessels calculated using the formula:
(The
Loan
- the aggregate Cash Reserve Amount in each Earnings Account) ÷ the Fair Market
Value of the Vessels x 100.
"London
Business Day"
means a
day (other than a Saturday or a Sunday) on which banks are open for business
in
London.
11
"Majority
Lenders"
means,
at any time prior to the first Drawdown Date or at any time during which
there
are no Contributions, a Lender or Lenders whose Commitments aggregate sixty
seven per cent (67%) or more of the aggregate of all the Commitments
of all
the Lenders or, at all other times, a Lender or Lenders whose Contributions
aggregate sixty seven per cent (67%) or more of the aggregate of all the
Contributions of all of the Lenders.
"Management
Agreement"
means
an agreement for the commercial, technical, administrative and strategic
management of the Borrower made or to be made between the Borrower and the
Manager.
"Manager"
means
Vanship Group Limited (tbn "Van Asia Capital Management Limited") a company
incorporated under the laws of Bermuda with its registered office at Xxxxxx
Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx.
"Margin"
means:
| (a) |
one
point seven five per cent (1.75%) per annum at any time when the
Loan to
Value Ratio is less than fifty per cent (50%);
or
|
| (b) |
two
point two five per cent (2.25%) per annum at any time when the
Loan to
Value Ratio is between fifty per cent (50%) and seventy per cent
(70%);
or
|
|
(c)
|
two
point seven five per cent (2.75%) per annum at any time when the
Loan to
Value Ratio is greater than seventy per cent
(70%).
|
"Master
Agreement"
means
any ISDA Master Agreements (or any other form of master agreement relating
to
interest exchange transactions) entered into between the Swap Provider and
the
Borrower during the Facility Period, including each Schedule to such Master
Agreement and each Confirmation exchanged pursuant to such Master
Agreement.
"Material
Adverse Effect"
means
any
event
or series of events which, has or is reasonably likely to have a material
adverse effect on a Security Party's ability to fulfill its payment or any
other
material obligations under any of the Relevant Documents to which it is a
party.
"Maximum
Loan Amount"
means
ninety million Dollars ($90,000,000).
12
"Maximum
Tranche Amount"
means:-
|
(a)
|
fifteen
million Dollars ($15,000,000) in the case of the Vessel A
Tranche;
|
|
(b)
|
twenty
four million Dollars ($24,000,000) in the case of the Vessel B
Tranche;
|
|
(c)
|
twenty
four million Dollars ($24,000,000) in the case of the Vessel C
Tranche;
and
|
|
(d)
|
twenty
seven million Dollars ($27,000,000) in the case of the Vessel D
Tranche.
|
"Merger"
shall
have the meaning ascribed thereto in the Share Purchase Agreement.
"Mortgages"
means
the statutory mortgages from the Collateral Owners in the Agreed Form referred
to in Clause 10.1.2 together with the Deeds of Covenants in the Agreed Form
referred to in Clause 10.1.2 and
"Mortgage"
means
any one of them.
"Operating
Expenses"
means
expenses properly and reasonably incurred or to be incurred by a Collateral
Owner in connection with the operation, employment, maintenance, repair and
insurance of its Vessel.
"Original
Financial Statements"
means
the audited
consolidated financial statements of EIAC for the financial year ended
2007.
"Permitted
Encumbrance"
means:
| (a) |
any
Encumbrance in existence on the date of this Agreement in relation
to the
assets of the Borrower and/or the Collateral Owners including,
without
limitation, the Existing Security;
|
| (b) |
any
Encumbrance arising to secure short term credit arrangements necessary
for, and incurred in the course of, the normal conduct of the Borrower’s
business;
|
| (c) |
any
Encumbrance on property of a Subsidiary of the Borrower (other
than a
Collateral Owner) which becomes a Subsidiary of the Borrower after
the
date of this Agreement, to secure obligations of that Subsidiary
existing
at the date on which it becomes a Subsidiary (but not any increase
in
principal amount or extension of maturity of such obligations);
|
13
| (d) |
any
Encumbrance on an asset (or the contract for the acquisition of
an asset)
acquired or constructed after the date of this Agreement by the
Borrower
or any of its Subsidiaries and created at the time of such acquisition
or
construction to secure payment of the purchase price of the asset
or to
secure any loan incurred for the purpose of financing such acquisition
or
construction;
|
| (e) |
any
Encumbrance of the Borrower to secure indebtedness not exceeding,
in
aggregate, $5,000,000;
|
| (f) |
any
Encumbrance arising by operation of law or which arises pursuant
to any
order or attachment, distraint or similar legal process arising
in
connection with court proceedings provided that the execution or
other
enforcement thereof is effectively stayed and the claims served
thereby
are being contested at the time in good faith by appropriate proceedings;
|
| (g) |
any
Encumbrance in favour of the Finance Parties pursuant to the Security
Documents;
|
| (h) |
any
lien on a Vessel for master’s, officer’s or crew’s wages outstanding in
the ordinary course of trading;
|
| (i) |
any
lien for salvage;
|
| (j) |
any
ship repairer’s or outfitter’s possessory lien for a sum not (except with
the prior written consent of the Agent, not to be unreasonably
withheld)
exceeding three million Dollars ($3,000,000) (in respect of an
individual
Vessel) or, where more than one (1) Vessel is subject to a ship
repairer's
or outfitters possessory lien, ten million Dollars ($10,000,000)
in
aggregate;
|
| (k) |
liens
arising in the ordinary course of trading by statute or by operation
of
law in respect of obligations which are not overdue or which are
being
contested in good faith by appropriate proceedings (and for the
payment of
which adequate reserves have been provided) so long as any such
proceedings or the continued existence of such lien do not involve
any
likelihood of the sale, forfeiture or loss of, or any interest
in, any
Vessel;
|
14
| (l) |
liens
securing liabilities for Taxes against which adequate reserves
have been
provided.
|
"Projected
Drydocking Cost"
means
the anticipated drydocking costs of a Vessel.
"Proportionate
Share"
means,
at any time prior to the first Drawdown Date or at any time during which
there
is no Contribution or for the purpose of Clause 4.3 (at all times), the
proportion which a Lender’s Commitment then bears to the aggregate Commitments
of all the Lenders or,
at
all other times, the proportion which a Lender's Contribution, then bears
to the
aggregate Contributions of all the Lenders.
"Reference
Banks"
means,
in relation to LIBOR, the principal Frankfurt office of DVB BANK AG and the
principal London office of Skandinaviska Enskilda Xxxxxx XX (publ) or such
other
banks as may be appointed by the Agent in consultation with the
Borrower.
"Relevant
Documents"
means
the Finance Documents, the Share Purchase Agreement, the Management Agreement,
the Technical Management Agreements, the Managers' confirmation specified
in
Part I(b) of Schedule 5 and the Charters.
"Repayment
Date"
means
the date for payment of any Repayment Instalment in accordance with
Clause 5.1.
"Repayment
Instalment"
means
any instalment of a Vessel Tranche to be repaid by the Borrower in accordance
with Clause 5.1.
"Requisition
Compensation"
means
all compensation or other money which may from time to time be payable to
a
Collateral Owner as a result of its Vessel being requisitioned for title
or in
any other way compulsorily acquired by any government body or other competent
authority (other than by way of requisition for hire).
"Retention
Accounts"
means
the bank accounts opened or to be opened in the name of each Collateral Owner
with the Agent (or such other leading bank as may be requested by the Borrower
and, subject to execution of an Accounts Charge in form and substance
satisfactory to the Lenders, agreed to by the Agent (such agreement not to
be
unreasonably withheld)) and designated, when such Retention Account is held
with
the Agent, "[Name of Collateral Owner] - Retention Account" each a "Retention
Account".
15
"Security
Documents"
means
the Guarantees, the Mortgages, the Deeds of Covenants, the Assignments, the
Assignments of Charters, the Accounts Charges, the Collateral Guarantees,
the
Collateral Mortgages, the Collateral Deeds of Covenants, the Collateral
Assignments, the Collateral Assignments of Charters, the Collateral Accounts
Charges, any Credit Support Documents or
(where
the context permits) any one or more of them and any other agreement or document
which may at any time be executed by any person as security for the payment
of
all or any part of the Indebtedness and "Security
Document"
means
any one of them.
"Security
Parties"
means
the Borrower, the Collateral Owners, the Double Hull Collateral Owners, any
other Credit Support Provider and any other person who may at any time during
the Facility Period be liable for, or provide security for, all or any part
of
the Indebtedness, and "Security
Party"
means
any one of them.
"Security
Percentage"
means,
in respect of a Vessel Tranche, one hundred and twenty five per cent (125%)
of
that Vessel Tranche provided that, if the Charter of the Vessel to which
that
Xxxxxx Xxxxxxx relates has less than twelve (12) months to run until it expires
by effluxion of time, such percentage shall be increased to one hundred and
sixty per cent (160%) of that Vessel Tranche.
"Share
Purchase Agreement"
means
the amended and restated share purchase agreement dated as of 6 February
2008
made between Vanship Holdings Limited, the Borrower and EIAC.
"SMC"
means a
valid safety management certificate issued for a Vessel by or on behalf of
the
Administration under paragraph 13.7 of the ISM Code.
"SMS"
means a
safety management system for a Vessel developed and implemented in accordance
with the ISM Code.
16
"Subsidiaries"
means,
in relation to
any
person, company, corporation or entity, a company, corporation or
entity:
| (a) |
which
is controlled, directly or indirectly, by the first-mentioned person,
company, corporation or entity;
|
| (b) |
more
than half the issued share capital of or equity interest in which
is
beneficially owned, directly or indirectly, by the first-mentioned
person,
company, corporation or entity; or
|
| (c) |
which
is a Subsidiary of another Subsidiary of the first-mentioned person,
company, corporation or entity.
|
and
for
this purpose, a company, corporation or entity shall be treated as being
controlled by another if that other person, company, corporation or entity
is
able to direct its policies and management whether by contract or
otherwise.
"Substitute
Charter"
means,
in respect of any Charter which terminates prior to the date on which that
Charter would have expired by effluxion of time, a substitute charter, on
substantially similar terms to that Charter or otherwise on terms and conditions
acceptable to the Agent, such acceptance not to be unreasonably withheld
or
delayed.
"Substitution
Period"
means,
in respect of any Charter which terminates prior to the date on which that
Charter would have expired by effluxion of time, the period beginning on
the
date of such termination and ending on the date falling sixty (60) days
thereafter.
"Tax"
means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure
to pay
or any delay in paying any of the same).
"Technical
Management Agreements"
means
the agreements for the technical management of the Vessels made or to be
made
between each Collateral Owner respectively and the Technical Manager and
"Technical Management
Agreement"
means
any one of them.
"Technical
Manager"
means
Univan Ship Management International Limited and/or Univan Ship Management
Limited, Hong Kong as its sub-contractor or such other technical managers
or
sub-technical managers of the Vessels nominated by a Collateral Owner, the
Borrower or the Manager as the Agent may approve (such approval not to be
unreasonably withheld or delayed).
17
"Total
Loss"
means:
|
(a)
|
an
actual, constructive, arranged, agreed or compromised total loss
of a
Vessel; or
|
|
(b)
|
the
requisition for title or compulsory acquisition of a Vessel by
any
government or other competent authority (other than by way of requisition
for hire); or
|
|
(c)
|
the
capture, seizure, arrest, detention or confiscation of a Vessel
by any
government or by persons acting or purporting to act on behalf
of any
government, unless that Xxxxxx is released and returned to the
possession
of the relevant Collateral Owner within sixty (60) days after the
capture,
seizure, arrest, detention or confiscation in
question.
|
"Transaction"
means a
transaction entered into between the Swap Provider and the Borrower governed
by
the Master Agreement.
"Transfer
Certificate"
means a
certificate substantially in the form set out in Schedule 8 or any other
form
agreed between the Agent and the Borrower.
"Transfer
Date",
in
relation to any Transfer Certificate, the later of:
| (a) |
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
| (b) |
the
date on which the Agent executes the Transfer
Certificate.
|
"Trust
Property"
means:
|
(a)
|
all
benefits derived by the Security Agent from Clause 10;
and
|
|
(b)
|
all
benefits arising under (including, without limitation, all proceeds
of the
enforcement of) each of the Security Documents,
|
with
the exception of any benefits arising solely for
the benefit of the Security Agent.
18
"Unpaid
Sum"
means
any sum due and payable but which remains unpaid by a Security Party under
the
Finance Documents.
"Vessel
Tranches"
means
the Vessel A Tranche, the Vessel B Tranche, the Vessel C Tranche and the
Vessel
D Tranche and "Vessel
Tranche"
means
any one of them.
"Vessel
A Tranche"
means
the lower of (i) the relevant Maximum Tranche Amount and (ii) sixty per cent
(60%) of the Fair Market Value of Vessel A calculated no more than fourteen
(14)
days prior to the Drawdown Date of the Vessel A Tranche and advanced or to
be
advanced by the Lenders to the Borrower in accordance with Clause 4 or, where
the context permits, the amount advanced and for the time being
outstanding.
"Vessel
B Tranche"
means
the lower of (i) the relevant Maximum Tranche Amount and (ii) sixty per cent
(60%) of the Fair Market Value of Vessel B calculated no more than fourteen
(14)
days prior to the Drawdown Date of the Vessel B Tranche and advanced or to
be
advanced by the Lenders to the Borrower in accordance with Clause 4 or, where
the context permits, the amount advanced and for the time being
outstanding.
"Vessel
C Tranche"
means
the lower of (i) the relevant Maximum Tranche Amount and (ii) sixty per cent
(60%) of the Fair Market Value of Vessel C calculated no more than fourteen
(14)
days prior to the Drawdown Date of the Vessel C Tranche and advanced or to
be
advanced by the Lenders to the Borrower in accordance with Clause 4 or, where
the context permits, the amount advanced and for the time being
outstanding.
"Vessel
D Tranche"
means
the lower of (i) the relevant Maximum Tranche Amount and (ii) sixty per cent
(60%) of the Fair Market Value of Vessel D calculated no more than fourteen
(14)
days prior to the Drawdown Date of the Vessel D Tranche and advanced or to
be
advanced by the Lenders to the Borrower in accordance with Clause 4 or, where
the context permits, the amount advanced and for the time being
outstanding.
"Vessels"
means
each vessel listed in Schedule 2 under the heading "Vessel" and everything
now
or in the future belonging to it on board and ashore, currently registered
under
the flag set out in Schedule 2 in the ownership of the Collateral Owner set
out
opposite its name in Schedule 2 and "Vessel"
means
any one of them.
19
| 1.2 |
In
this Agreement:
|
|
1.2.1
|
words
denoting the plural number include the singular and vice
versa;
|
|
1.2.2
|
words
denoting persons include corporations, partnerships, associations
of
persons (whether incorporated or not) or governmental or
quasi-governmental bodies or authorities and vice
versa;
|
|
1.2.3
|
references
to Recitals, Clauses and Schedules are references to recitals,
clauses and
schedules to or of this Agreement;
|
|
1.2.4
|
references
to this Agreement include the Recitals and the
Schedules;
|
|
1.2.5
|
the
headings and contents page(s) are for the purpose of reference
only, have
no legal or other significance, and shall be ignored in the interpretation
of this Agreement;
|
|
1.2.6
|
references
to any document (including, without limitation, to all or any of
the
Relevant Documents) are, unless the context otherwise requires,
references
to that document as amended, supplemented, novated or replaced
from time
to time;
|
|
1.2.7
|
references
to statutes or provisions of statutes are references to those statutes,
or
those provisions, as from time to time amended, replaced or
re-enacted;
|
|
1.2.8
|
references
to any
Finance Party include
its successors, permitted transferees and permitted assignees;
|
|
1.2.9
|
a
time of day (unless otherwise specified) is a reference to Singapore
time;
and
|
|
1.2.10
|
words
and expressions defined in the Master Agreement, unless the context
otherwise requires, have the same
meaning.
|
20
| 1.3 |
Offer
letter
|
This
Agreement supersedes the terms and conditions contained in any correspondence
relating to the subject matter of this Agreement exchanged between any
Finance Party
and the
Borrower or their representatives prior to the date of this Agreement save
for
the provisions of the committed term sheet headed "Borrowers' Walk Away Option"
and "Market Flex" accepted by the Borrower and the Collateral Owners on
18th
April
2008 which shall remain in full force and effect in accordance with their
terms.
| 1.4 |
Accounting
terms
|
Any
accounting terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with applicable GAAP (whether or not such
is
indicated in this Agreement).
| 1.5 |
Majority
Lenders
|
Where
this Agreement or any of the other Finance Documents provides for any matter
to
be determined by reference, directly or indirectly, to the opinion of the
Majority Lenders or to be subject, directly or indirectly, to the consent
or
request of the Majority Lenders or for any action to be taken, directly or
indirectly, on the instructions of the Majority Lenders, the Agent shall
be
obliged to notify the Borrower as soon as is reasonably practicable of any
such
opinion, consent, request or instructions and the Borrower shall be entitled
to
rely upon such notification as to whether or not the relevant majority has
been
obtained.
| 2 |
The
Loan
and its Purpose
|
|
2.1
|
Amount
Subject to the terms of this Agreement, the Lenders agree to
make
available to the Borrower a term loan not exceeding the Maximum
Loan
Amount.
|
|
2.2
|
Finance
Parties' obligations The
obligations of each Finance Party under the Finance Documents
are several.
Failure by a Finance Party to perform its obligations under
the Finance
Documents does not affect the obligations of any other party
to the
Finance Documents. No Finance Party is responsible for the
obligations of
any other Finance Party under the Finance Documents.
|
21
|
2.3
|
Purpose
The
Borrower shall apply the Loan for the purposes referred to
in Recital
(B).
|
|
2.4
|
Monitoring No
Finance Party is
bound to monitor or verify the application of any amount borrowed
under
this Agreement.
|
| 3 |
Conditions
of Utilisation
|
|
3.1
|
Conditions
precedent The
Borrower is not entitled to have any Drawing advanced unless
the Agent or
its duly authorised representative has received all of the
documents and
other evidence listed in Part I(a)
of
Schedule 5 and Part I(b) of Schedule 5, save that references
in Part I(b)
of Schedule 5 to "the Vessel" or to any person or document
relating to a
Vessel shall be deemed to relate solely to any Vessel specified
in the
relevant Drawdown Notice or to any person or document relating
to that
specific Vessel respectively.
|
|
3.2
|
Further
conditions precedent The
Lenders will only be obliged to advance a Drawing if on the
date of the
Drawdown Notice and on the proposed Drawdown
Date:
|
|
3.2.1
|
no
Default shall have occurred and be continuing or would result
from the
advance of that Drawing; and
|
|
3.2.2
|
the
representations made by the Borrower under Clause 11 are true
in all
material respects.
|
|
3.3
|
Drawing
limit
The Lenders will only be obliged to advance a Drawing if that
Drawing will
not increase the Loan to a sum in excess of the Maximum Loan
Amount nor
result in a Vessel Tranche exceeding the amount calculated
in accordance
with the definition of that Vessel Tranche in Clause 1.1 provided
that, if
the Borrower has exercised its option pursuant to Clause 4.1,
that Vessel
Tranche shall be reduced by an amount equivalent to one third
of the first
Repayment Instalment in respect of that Vessel Tranche as set
out in
Schedule 6 (as reduced, if applicable, by the operation of
Clause 5.3) and
the Agent shall prepare a replacement repayment schedule for
that Vessel
Tranche and such replacement repayment schedule shall (in the
absence of
manifest error) replace the original repayment schedule for
that Vessel
Tranche and shall thereafter be the repayment schedule in respect
of that
Vessel Tranche.
|
22
|
3.4
|
Conditions
subsequent
The Borrower undertakes to deliver or to cause to be delivered
to the
Agent or its duly authorised representative on, or as soon
as practicable
after, the relevant Drawdown Date and in any event prior to
the relevant
date set out in Part II of Schedule 5, the additional documents
and other
evidence listed in Part II of Schedule 5, save that references
in that
Part II to "the Vessel" or to any person or document relating
to a Vessel
shall be deemed to relate solely to any Vessel specified in
the relevant
Drawdown Notice or to any person or document relating to that
specific
Vessel respectively.
|
|
3.5
|
No
Waiver
If
the Lenders in their sole discretion agree to advance a Drawing
to the
Borrower before all of the documents and evidence required
by Clause 3.1
have been delivered to or to the order of the Agent or its
duly authorised
representative, the Borrower undertakes to deliver all outstanding
documents and evidence to or to the order of the Agent or its
duly
authorised representative no later than thirty (30) days after
the
relevant Drawdown Date or such other earlier date as is specified
in
Schedule 5 Part II or later date as may be agreed by the Agent
and the
Borrower.
|
The
advance of a Drawing under this Clause 3.5
shall
not be taken as a waiver of the Lenders' right to require production
of all the
documents and evidence required by Clause 3.1.
|
3.6
|
Form
and content
All documents and evidence delivered to the Agent or its duly
authorised
representative under this Clause 3
shall:
|
| 3.6.1 |
be
in form and substance reasonably acceptable to the Agent;
and
|
|
3.6.2
|
if
required by the Agent (acting reasonably), be certified, notarised,
legalised or attested in a manner acceptable to the
Agent.
|
| 4 |
Availability
date and Advance
|
|
4.1
|
Availability
date
The Borrower shall have the option, exercisable by notice in
writing
addressed to the Agent no less than three (3) Business Days
prior to the
Availability Termination Date, to extend the Availability Termination
Date
until the Extended Availability Termination
Date.
|
23
|
4.2
|
Drawdown
Request The
Borrower may drawdown the Loan in up to four Drawings each
comprising one
or more Vessel Tranches, which Vessel Tranches are each to
be advanced in
one amount on a Business Day prior to the Availability Termination
Date
or, subject to Clause 4.1, the Extended Availability Termination
Date, by
delivering to the Agent a duly completed Drawdown Notice not
more than ten
(10) and not fewer than three (3) Business Days before the
proposed
Drawdown Date.
|
|
4.3
|
Lenders'
participation Subject
to Clauses 2 and
3, the Agent shall promptly notify each Lender of the receipt
of a
Drawdown Notice, following which each Lender shall advance
its
Proportionate Share of the relevant Drawing to the Borrower
through the
Agent on the relevant
Drawdown Date.
|
| 5 |
Repayment
|
|
5.1
|
Repayment
of Loan
The Borrower agrees to repay the Vessel A Tranche to the Agent
for the
account of the Lenders by six (6) consecutive quarterly instalments
and to
repay each of the Vessel B Tranche, the Vessel C Tranche and
the Vessel D
Tranche to the Agent for
the account of the Lenders
by
ten (10) consecutive quarterly instalments each in the sum
indicated
opposite the relevant instalment number in Schedule 6. The
first
instalment for a Vessel Tranche shall fall due on 30th
September 2008 and subsequent instalments shall, subject to
Clause 5.2,
fall due at consecutive intervals of three (3) calendar months
thereafter.
|
|
5.2
|
Final
Repayment Date
The final repayment date of a Vessel Tranche shall be the earlier
of
(i)
the date for repayment of that Vessel Tranche calculated in
accordance
with Clause 5.1 and Schedule 6 and (ii)
31st
December 2010.
|
|
5.3
|
Reduction
of Repayment Instalments
If
the aggregate amount advanced to the Borrower in respect of
a Vessel
Tranche is less than the Maximum Tranche Amount applicable
to that Vessel
Tranche, the amount of each Repayment Instalment in respect
of that Vessel
Tranche shall be reduced pro rata to the amount actually
advanced.
|
|
5.4
|
Reborrowing
The
Borrower may not reborrow any part of the Loan which is repaid
or
prepaid.
|
24
| 6 |
Prepayment
|
|
6.1
|
Illegality
If
it becomes unlawful in any applicable jurisdiction for a Lender
to perform
any of its obligations as contemplated by this Agreement or
to fund or
maintain the Loan:
|
|
6.1.1
|
that
Lender shall promptly notify the Agent of that
event;
|
|
6.1.2
|
upon
the Agent notifying the Borrower, the Commitment of that Lender
(to the
extent not already advanced) will be immediately cancelled;
and
|
|
6.1.3
|
the
Borrower shall repay that
Xxxxxx's Contribution
within forty five (45) days of its receipt of notification
in accordance
with Clause 6.1.2 or, if earlier, the date specified by that
Xxxxxx in the
notice delivered to the Agent
and notified by the Agent to the Borrower
(being no earlier than the last day of any applicable grace
period
permitted by law) and
the remaining Repayment Instalments shall be reduced pro rata.
|
|
6.2
|
Voluntary
prepayment of Loan The
Borrower may prepay the whole or any part of the Loan (but,
if in part,
being an amount that reduces the Loan by a minimum amount of
five hundred
thousand Dollars ($500,000) or multiples thereof) subject as
follows:
|
|
6.2.1
|
it
gives the Agent not less than five (5) Business Days' (or such
shorter
period as the Agent may reasonably agree) prior notice;
|
|
6.2.2
|
any
prepayment under this Clause 6.2 shall be pro-rated across
the Vessel
Tranches and then applied in satisfaction of the Borrower's
obligations
under Clause 5.1 in inverse order of
maturity.
|
|
6.3
|
Mandatory
prepayment on sale or Total Loss
If
a Vessel is sold by a Collateral Owner or becomes a Total Loss,
the
Borrower shall, simultaneously with any such sale or within
one hundred
and twenty (120) days after any such Total Loss, make a prepayment
of the
Loan in an amount equivalent to those sale or Total Loss proceeds.
Any
such prepayment shall be applied first in prepayment of the
Vessel Tranche
applicable to that Vessel and any surplus shall be pro-rated
across the
remaining Vessel Tranches and then applied in satisfaction
of the
Borrower's obligations under Clause 5.1 in respect thereto
in inverse
order of maturity.
|
25
|
For
the purpose of the Finance Documents a Total Loss shall be
deemed to have
occurred when:-
|
| (a) |
in
the case of an actual total loss of a Vessel on the actual
date or at the
time that Xxxxxx was lost or, if such date is not known, on
the date on
which that Vessel was last
reported;
|
| (b) |
in
the case of a constructive total loss of a Vessel, upon the
date and at
the time notice of abandonment of that Xxxxxx is given to the
insurers of
that Vessel for the time being (provided a claim for total
loss is
admitted by such insurers) or, if such insurers do not admit
such a claim,
at the date and at the time at which either a total loss is
subsequently
adjudged by a competent court of law or arbitration tribunal
to have
occurred or a total loss is subsequently admitted by the
insurers;
|
| (c) |
in
the case of a compromised or arranged total loss, on the date
upon which a
binding agreement as to such compromised or arranged total
loss has been
entered into by the insurers of that
Vessel;
|
| (d) |
in
the case of requisition for the title or compulsory acquisition
of a
Vessel on the date on which the requisition for title or other
compulsory
acquisition in relation to that Vessel occurs;
and
|
| (e) |
in
the case of capture, seizure, arrest, detention or confiscation
of a
Vessel (other than by way of requisition for title or compulsory
acquisition) by any government or by persons purporting to
act on behalf
of any government which deprives the relevant Collateral Owner
of the use
of that Vessel for more than sixty (60) days, upon the expiry
of the
period of sixty (60) days after the date upon which the relevant
capture,
seizure, arrest, detention or confiscation
occurred.
|
|
6.4
|
Mandatory
prepayment on termination of Charter
If
a Charter is terminated for any reason prior to its scheduled
expiry date
(other than the sale of the relevant Vessel which is the subject
of that
Charter or a Total Loss in respect of that Vessel), the Borrower
shall,
unless that Vessel has been delivered into a Substitute Charter
within the
Substitution Period pursuant to Clause 12.5, prepay the Vessel
Tranche
applicable to that Vessel within three (3) Business Days following
the
expiry of the Substitution Period.
|
26
|
6.5
|
Mandatory
prepayment in single hull phase-out
If
three (3) or more of any of the People's Republic of China,
South Korea,
Japan, India, Indonesia, Thailand, Singapore and Taiwan enforce
a
phase-out of single hull oil tankers the Borrower shall prepay
the Loan
within three (3) Business Days of the date on which the last
of the three
(3) countries above who have enforced such phase-out, enforce
such
phase-out.
|
|
6.6
|
Mandatory
prepayment on change of control
If
there occurs any change in the control of the Borrower or the
Borrower
enters into any amalgamation, demerger, merger or corporate
restructuring
(save in accordance with the Share Purchase Agreement) or the
Borrower
disposes of a material part of any of its present or future
assets or
undertaking without, in each such case, the prior written consent
of the
Majority Lenders (such consent not to have been unreasonably
withheld or
delayed) the Borrower shall prepay the Loan within three (3)
Business Days
of such event occurring.
|
|
6.7
|
Restrictions
Any
notice of prepayment given under this Clause 6
shall be irrevocable and, unless a contrary indication appears
in this
Agreement, shall specify the date or dates upon which the relevant
prepayment is to be made and the amount of that
prepayment.
|
Any
prepayment under this Agreement shall be made together with accrued interest
on
the amount prepaid and, subject to any Break Costs.
If
the
Agent receives a notice under this Clause 6
it shall
promptly forward a copy of that notice to the Borrower or the Lenders,
as
appropriate.
| 7 |
Interest
|
|
7.1
|
Interest
Periods
The period during which each Vessel Tranche shall be outstanding
under
this Agreement shall be divided into consecutive Interest Periods
of three
(3), six (6) or twelve (12) months' duration, as selected by the
Borrower by written notice to the Agent not later than 11.00
a.m. on the
third London Business Day before the beginning of the Interest
Period in
question, or such other duration as may be agreed by the Borrower
and the Agent.
|
27
|
7.2
|
Beginning
and end of Interest Periods Each
Interest Period in respect of a Vessel Tranche shall start
on the first
Drawdown Date in respect of that Vessel Tranche or, if that
Vessel Tranche
has already been drawndown, on the last day of the preceding
Interest
Period and end on the date which numerically corresponds to
the first
Drawdown Date or the last day of the preceding Interest Period
in the
relevant calendar month except that, if there is no numerically
corresponding date in that calendar month, the Interest Period
shall end
on the last Business Day in that
month.
|
|
7.3
|
Interest
Periods to meet Repayment Dates If
an Interest Period will expire after the next Repayment Date,
there shall
be a separate Interest Period for a part of Vessel Tranche
equal to the
Repayment Instalment due on that next Repayment Date and that
separate
Interest Period shall expire on that next Repayment
Date.
|
|
7.4
|
Non-Business
Days
If
an Interest Period would otherwise end on a day which is not
a Business
Day, that Interest Period will instead end on the next Business
Day in
that calendar month (if there is one) or the preceding Business
Day (if
there is not).
|
|
7.5
|
Interest
rate
During each Interest Period interest shall accrue on each Vessel
Tranche
at the rate determined by the Agent to be the aggregate of
(a) the
applicable Margin and
(b) LIBOR.
|
|
7.6
|
Failure
to select Interest Period If
the Borrower at any time fails to select or agree an Interest
Period in
accordance with Clause 7.1, the interest rate applicable shall
be the rate
determined by the Agent in accordance with Clause 7.5 for an
Interest
Period of such duration (not exceeding three (3) months) as the Agent
may select.
|
|
7.7
|
Accrual
and payment of interest Interest
shall accrue from day to day, shall be calculated on the basis
of a 360
day year and the actual number of days elapsed (or, in any
circumstance
where market practice differs, in accordance with the prevailing
market
practice) and shall be paid by the Borrower to the Agent
for the account of the Lenders on
the last day of each Interest Period and, if the Interest Period
is longer
than three (3) months, on the dates falling at three (3) monthly
intervals after the first day of that Interest
Period.
|
28
| 7.8 |
Default
interest If
the Borrower fails to pay any amount payable by it under a
Finance
Document on its due date, interest shall accrue on the overdue
amount from
the due date up to the date of actual payment (both before
and after
judgment) at a rate which is two per cent (2%) higher
than the rate which would have been payable if the overdue
amount had,
during the period of non-payment, constituted the Loan in the
currency of
the overdue amount for successive Interest Periods, each selected
by the
Agent (acting reasonably). Any interest accruing under this
Clause 7.8
shall be immediately payable by the Borrower on demand by the
Agent. If
unpaid, any such interest will be compounded with the overdue
amount at
the end of each Interest Period applicable to that overdue
amount but will
remain immediately due and payable.
|
|
7.9
|
Changes
in market circumstances If
at any time prior to the commencement of an Interest Period
the Agent
determines (which determination shall, in the absence of manifest
error,
be final and conclusive and binding on the Borrower) that (i)
in
the London interbank market adequate and fair means do not
exist for
determining the rate of interest on a Vessel Tranche for any
Interest
Period by reason of circumstances affecting the London Interbank
Market
generally or (ii)
none or only one of the Reference Banks supplies the Lenders
with a
quotation for the purpose of calculating LIBOR or (iii)
the Agent is notified by Xxxxxxx whose participation in the
Loan exceeds
fifty per cent (50%) of the Loan that LIBOR does not accurately
reflect
the cost to such Lenders of obtaining deposits in Dollars in
the London
Interbank Market in the ordinary course of
business:
|
| 7.9.1 |
the
Agent shall promptly give notice to the
Lenders and the
Borrower of the occurrence of such event and such notice shall
contain
particulars of the relevant circumstances giving rise to this
issue and
shall certify the effective cost to the Lenders of maintaining
the Loan
and the rate of interest payable by the Borrower for that Interest
Period;
and
|
| 7.9.2 |
the
rate of interest on each
Lender's Contribution
in the relevant Vessel Tranche for
that Interest Period shall be the rate per annum which is the
sum
of:
|
|
(a)
|
the
Margin; and
|
29
|
(b)
|
the
rate notified
to the Agent by that Xxxxxx as soon as practicable, and in
any event
before interest is due to be paid in respect of that Interest
Period, to
be that which
expresses as a percentage rate per annum the cost to that Lender
of
funding its Contribution in the relevant Vessel Tranche from
whatever
source it may reasonably select
|
PROVIDED
THAT if the resulting rate of interest on
any
Contribution is
not
acceptable to the Borrower:
|
7.9.3
|
the
Agent
on behalf of the Lenders will
negotiate with the Borrower in good faith for a period of up
to thirty
(30) days with a view to modifying this Agreement to provide
a substitute
basis for determining the rate of interest which is financially
a
substantial equivalent to the basis provided for in this
Agreement;
|
|
7.9.4
|
any
substitute basis agreed pursuant to Clause 7.9.3 shall be binding
on all
the parties to this Agreement and
shall apply to all Contributions in the relevant Vessel
Tranche; and
|
|
7.9.5
|
if,
within thirty (30) days of the giving of the notice referred
to in
Clause 7.9.1, the Borrower and the Agent fail to agree in writing
on
a substitute basis for determining the rate of interest in
respect of the
relevant Vessel Tranche, the relevant Lender shall cease to
be obliged to
advance its Commitment in that Vessel Tranche but, if it has
already been
advanced, the Borrower will prepay the relevant Lender's Contribution
to
that Vessel Tranche on the tenth (10th)
Business Day after expiry of such thirty (30) day period, together
with
any Break Costs, and
the remaining Repayment Instalments in respect of that Vessel
Tranche
shall be reduced by the amount of that Xxxxxx's Commitment
or Contribution
(as applicable) on a pro rata basis.
|
|
7.10
|
Determinations
conclusive The
Agent shall promptly notify the Borrower of the determination
of a rate of
interest under this Clause 7
and each such determination shall (save in the case of manifest
error) be
final and conclusive.
|
30
|
7.11
|
Interest
rate hedge
The Borrower may, if it wishes, enter into a swap to swap its
floating
interest rate under this Agreement to a fixed interest rate
in respect of
a notional amount of up to the full amount of the Loan and
the Borrower
agrees, without any commitment on its part, to offer the Swap
Provider a
right of first refusal to enter into a Transaction in respect
of any such
swap.
|
|
7.12
|
Reference
Bank quotations Subject
to clause 7.9 (ii) (which applies in the event that none or
only one of
the Reference Banks supplies the Lenders with a quotation for
the purpose
of calculating LIBOR), if any Reference Bank is unable or otherwise
fails
to furnish a quotation for the purpose of calculating LIBOR,
the interest
rate shall be determined or the basis of the quotations furnished
by the
remaining Reference Banks.
|
| 8 |
Indemnities
|
|
8.1
|
Transaction
expenses The
Borrower will, within fourteen (14) days of the Agent's written
demand,
pay the Agent
(for the account of the Finance Parties) the
amount of all documented costs and expenses (including legal
fees and
Value Added Tax or any similar or replacement tax if applicable)
reasonably incurred by the Finance
Parties or any of them in
connection with:
|
|
8.1.1
|
the
negotiation, preparation, printing, execution and registration
of the
Finance Documents (whether or not any Finance Document is actually
executed or registered and whether or not all or any part of
the Loan is
advanced);
|
|
8.1.2
|
any
amendment, addendum or supplement to any Finance Document (whether
or not
completed) requested by the Borrower;
and
|
|
8.1.3
|
any
other document which may at any time be reasonably required
by
a
Finance Party to
give effect to any Finance Document or which a
Finance Party is
entitled to call for or obtain under any Finance Document (including,
without limitation, any valuation of the Vessels) and any insurance
report,
|
but
excluding, for the avoidance of doubt, any such expense incurred in connection
with the transfer, assignment or sub-participation of any of the rights
and/or
obligations of any Lender under the Finance Documents.
31
|
8.2
|
Funding
costs
The Borrower shall indemnify each
Finance Party, by payment to the Agent (for the account of
that Finance
Party) on
the Agent's written demand against all direct and foreseeable
losses and
costs incurred or sustained by that
Finance Party if,
for any reason, a Drawing is not advanced to the Borrower after
the
relevant Drawdown Notice has been given to the Agent, or is
advanced on a
date other than that requested in the Drawdown Notice (unless,
in either
case, as a result of any default by, or negligence of, a Finance
Party).
|
|
8.3
|
Break
Costs
The Borrower shall indemnify each
Lender, by payment to the Agent (for the account of that
Lender)
on
the
Agent's written demand
against all
Break Costs directly and foreseeably incurred by that
Xxxxxx as
a result of its receiving any prepayment of all or any part
of the Loan
(whether pursuant to Clause 6 or otherwise) on a day other
than the last
day of an Interest Period for the relevant Vessel Tranche or
relevant part
of that Vessel Tranche, or any other payment (other than loss
of Margin)
under or in relation to the Finance Documents on a day other
than the due
date for payment of the sum in question, including (without
limitation)
any losses or costs incurred in liquidating or re-employing
deposits from
third parties acquired to effect or maintain all or any part
of the Loan,
and any liabilities, expenses or losses incurred by that
Finance Party in
terminating or reversing, or otherwise in connection with,
any Transaction
or any other interest rate and/or currency swap, transaction
or
arrangement entered into by that
Finance Party to
hedge any exposure arising under this Agreement, or in terminating
or
reversing, or otherwise in connection with, any open position
arising
under this Agreement or the Master
Agreement.
|
|
8.4
|
Currency
indemnity In
the event of a
Finance Party receiving
or recovering any amount payable under a Finance Document in
a currency
other than the Currency of Account, and if the amount received
or
recovered is insufficient when converted into the Currency
of Account at
the date of receipt to satisfy in full the amount due, the
Borrower shall,
on the Agent's written demand, pay to the Agent
for the account of the relevant Finance Party such
further amount in the Currency of Account as is sufficient
to satisfy in
full the amount due and that further amount shall be due to
the
Agent
on behalf of the relevant Finance Party
as
a separate debt under this
Agreement.
|
32
|
8.5
|
Increased
costs (subject to Clause 8.6) If,
by reason of the introduction of any law, or any change in
any law, or any
change in the interpretation or administration of any law,
or compliance
with any request or requirement from any central bank or any
fiscal,
monetary or other authority occurring after the date of this
Agreement
except if applicable to a particular Lender only and not generally
imposed
on all banks of the same kind regulated by the same central
bank or other
fiscal or monetary or other
authority:
|
|
8.5.1
|
any
reserve requirements shall be imposed, modified or deemed applicable
against assets held by or deposits in or for the account of
or loans by
any branch of a
Lender;
or
|
|
8.5.2
|
the
manner in which a
Lender allocates
capital resources to its obligations under this Agreement or
any ratio
(whether cash, capital adequacy, liquidity or otherwise) which
a
Lender is
required or requested to maintain shall be affected;
or
|
|
8.5.3
|
there
is imposed on a
Lender
any other condition in relation to the Indebtedness or the
Finance
Documents;
|
and
the
result of any of the above shall be to increase the cost to a
Lender of
that
Lender making
or
maintaining its Commitment and/or Contribution, or to cause a
Lender to
suffer
(in its opinion) a reduction in the rate of return on its overall capital
below
the level which it reasonably anticipated at the date of this Agreement
and
which it would have been able to achieve but for its entering into this
Agreement and/or performing its obligations under this Agreement, then,
subject
to Clause 8.6, the
Lender
affected shall
notify the Agent and the Agent shall in turn notify the Borrower and
the
Borrower shall from time to time pay to the Agent, within ten (10) Business
Days
of a demand by the Agent, for
the
account of that Lender
the
amount which shall compensate that
Lender for
such
additional cost or reduced return. A certificate signed by an authorised
signatory of that
Xxxxxx setting
out the amount of that payment and the basis of its calculation shall
be
submitted to the Borrower and shall be conclusive evidence of such amount
save
for manifest error or on any question of law.
33
Without
prejudice to the Borrower's obligation to pay any amount required to
be paid
under this Clause or Clause 17.3, the affected Lender,
the
Borrower and the Agent shall consult in good faith including, without
limitation, consultation on the possibility of the affected Lender
transferring its Commitment and/or Contribution to an alternative lending
office
or to an alternative bank or financial institution to avoid the increased
cost
or liability identified by the affected Lender.
If no
agreement is reached on the means to avoid such increased cost or liability
within thirty (30) days of the date on which the affected Lender
notified
the Borrower of the increased cost or liability in question, the Borrower
may,
at its option, prepay the relevant Lender
's
Contribution and cancel its Commitment on the next Interest Payment Date(s)
relevant to such Contribution and on receipt of such prepayment the remain
Repayment Instalments shall be reduced by the amount of that Lender's
Commitment
or Contribution (as applicable) on a pro-rata basis.
|
8.6
|
Exceptions
to increased costs Clause
8.5 does
not apply to the extent any additional cost or reduced return
referred to
in that Clause is:
|
| 8.6.1 |
compensated
for by a payment made under Clause 8.10;
or
|
| 8.6.2 |
compensated
for by a payment made under Clause 17.3;
or
|
| 8.6.3 |
compensated
for by any other provision in this Agreement;
or
|
| 8.6.4 |
attributable
to the negligence of, or the wilful breach by the relevant
Lender
of
any law or regulation.
|
|
8.7
|
Events
of Default The
Borrower shall indemnify each
Finance Party from
time to time,
by payment to the Agent (for the account of that Finance
Party)
on
the Agent's written demand, against all losses, costs and liabilities
incurred or sustained by that
Finance Party as
a consequence of the occurrence of any Event of Default.
|
|
8.8
|
Enforcement
costs
The Borrower shall pay to the Agent
(for the account of each Finance Party) on
the Agent's written demand the amount of all costs and expenses
(including
legal fees) incurred by that
Finance Party in
connection with the enforcement of, or the preservation of
any rights
under, any Finance Document including (without limitation)
any losses,
costs and expenses which that
Finance Party may
from time to time sustain, incur or become liable for by reason
of
that
Finance Party being
mortgagee of a Vessel or a Collateral Vessel and/or a lender
to the
Borrower, or by reason of that
Finance Party being
deemed by any court or authority to be an operator or controller,
or in
any way concerned in the operation or control, of a Vessel
or a Collateral
Vessel.
|
34
|
8.9
|
Other
costs
The Borrower shall pay to the Agent
(for the account of each Finance Party) on
the Agent's written demand the amount of all sums which that
Finance Party may
pay or become actually or contingently liable for on account
of a
Collateral Owner or a Double Hull Collateral Owner in connection
with a
Vessel or a Double Hull Vessel (whether alone or jointly or
jointly and
severally with any other person) including (without limitation)
all sums
which that
Finance Party may
pay or guarantees which it may reasonably give in respect of
the
Insurances, any expenses reasonably incurred by that
Finance Party in
connection with the maintenance or repair of a Vessel or a
Double Hull
Vessel or in discharging any lien, bond or other claim relating
in any way
to a Vessel or a Double Hull Vessel, and any sums which that
Finance Party may
pay or guarantees which it may reasonably give to procure the
release of a
Vessel or a Double Hull Vessel from arrest or
detention.
|
|
8.10
|
Taxes
The
Borrower shall pay all Taxes to which all or any part of the
Indebtedness
or any Finance Document may be at any time subject (other than
Tax on
a
Finance Party's
overall
net income, gains or profit) and shall indemnify the
Finance
Parties, by payment to the Agent (for the account of the Finance
Parties)
on the Agent's
written
demand, against all liabilities, costs, claims and expenses
resulting from
any omission to pay or delay in paying any such Taxes (except
for Taxes
incurred in connection with any transfer, assignment or sub-participation
of any of the rights and/or obligations of a Lender under any
of the
Finance Documents).
|
| 9 |
Fees
|
|
9.1
|
Commitment
fee
The Borrower shall pay to the Agent
(for the account of the Lenders in their respective Proportionate
Shares
calculated by reference to the respective relevant Commitments
of each
Lender)
a
commitment fee computed at the rate of zero point two five
per cent
(0.25%) per annum on the undrawn amount of the Maximum Loan
Amount from
time to time from the date of this Agreement until the earlier
of the
Drawdown Date in respect of the final Drawing and the Availability
Termination Date (or if applicable, the Extended Availability
Termination
Date). The accrued commitment fee is payable on each Drawdown
Date and, if
not all the Vessel Tranches are advanced, on the Availability
Termination
Date (or, if applicable, the Extended Availability Termination
Date).
|
35
|
9.2
|
Arrangement
fee
The Borrower shall pay to the Agent for the account of DVB
Group Merchant
Bank (Asia) Ltd an arrangement fee in the amount and at the
times agreed
in a Fee Letter.
|
|
9.3
|
Agency
fee
The Borrower shall pay to the Agent (for its own account) an
agency
fee in the amount and at the times agreed in a Fee
Letter.
|
| 10 |
Security
and Application of Moneys
|
|
10.1
|
Security
Documents
As
security for the payment of the Indebtedness, the Borrower
shall execute
and deliver to the Security
Agent or
cause to be executed and delivered to the Security
Agent the
following documents in the Agreed
Form:
|
|
10.1.1
|
guarantees
and indemnities from the Collateral
Owners;
|
|
10.1.2
|
first
priority statutory mortgages over the Vessels together with
collateral
deeds of covenants;
|
|
10.1.3
|
first
priority deeds of assignment of the Insurances, Earnings and
Requisition
Compensation of the Vessels from the Collateral Owners;
|
|
10.1.4
|
first
priority deeds of assignment of the Charters or any Substitute
Charter
from the Collateral Owners;
|
|
10.1.5
|
first
priority deeds of charge over the Accounts and all amounts
from time to
time standing to the credit of the Accounts from the Collateral
Owners;
|
|
10.1.6
|
guarantees
and indemnities from the Double Hull Collateral
Owners;
|
|
10.1.7
|
second
priority statutory mortgages over the Double Hull Vessels together
with
second priority collateral deeds of
covenants;
|
|
10.1.8
|
second
priority deeds of assignment of the insurances, earnings and
requisition
compensation of the Double Hull Vessels from the Double Hull
Collateral
Owners;
|
36
|
10.1.9
|
second
priority deeds of assignment of the Double Hull Charters or
any Double
Hull Substitute Charter from the Double Hull Collateral Owners;
and
|
|
10.1.10
|
second
priority deeds of charge over the Double Hull Accounts and
all amounts
from time to time standing to the credit of the Double Hull
Accounts from
the Double Hull Collateral Owners.
|
|
10.2
|
Pledge
option
In
consideration of, inter alia, the Lenders making their respective
Commitments and/or Contribution available to the Borrower and/or
entering
into or continuing a Transaction, the Borrower hereby irrevocably
and
unconditionally agrees and undertakes that it will, within
ten (10)
Business Day of receipt of written notice from the Agent at
any time
during the Facility Period (i)
execute in favour of the Security Agent first priority pledges
or charges
over all the Borrower's right, title and interest to and in
the shares of
each Collateral Owner in such form as the Security Agent and
the Borrower,
acting reasonably, may agree (ii)
execute in favour of the Security Agent second priority pledges
or charges
over all the Borrower's right, title and interest in and to
the shares of
each Double Hull Collateral Owner in such form as the Security
Agent and
the Borrower, acting reasonably, may agree and (iii)
execute and deliver to the Security Agent all further instruments
and
documents which the Security Agent may reasonably require to
obtain the
full benefits of such pledges or
charges.
|
|
10.3
|
Earnings
and Retention Accounts The
Borrower shall procure that each Collateral Owner maintains
its Accounts
with the Agent (or such other leading bank as may be requested
by the
Borrower and, subject to execution of an Accounts Charge in
form and
substance satisfactory to the Lenders, agreed to by the Agent
(such
agreement not to be unreasonably withheld)) for the duration
of the
Facility Period free of Encumbrances (other than Permitted
Encumbrances)
and rights of set off other than those created by or under
the Finance
Documents.
|
|
10.4
|
Earnings
The
Borrower shall procure that all Earnings and any Requisition
Compensation
in respect of a Vessel are credited to the Earnings Account
applicable to
that Vessel.
|
|
10.5
|
Transfers
to Retention Account On
the day in each calendar month during the Facility Period which
numerically corresponds to the Drawdown Date in respect of
a Vessel
Tranche (or, if there is no such day, on the last Business
Day of that
month), the Borrower shall, subject to Clause 10.9, procure
that there is
transferred from the relevant Earnings Account to the relevant
Retention
Account:
|
|
10.5.1
|
one-third
of the amount of the Repayment Instalment due on the next Repayment
Date;
and
|
37
|
10.5.2
|
the
amount of interest due on the next Interest Payment Date divided
by the
number of months between the last Interest Payment Date (or,
if none, the
Drawdown Date of that Vessel Tranche) and that next Interest
Payment
Date,
|
and
the
Borrower irrevocably authorises the Agent and will procure that each
Collateral
Owner irrevocably instructs the Agent, to make those transfers provided
always
that, if the Borrower has exercised its option under Clause 4.1, the
amount of
the Repayment Instalment referred to in Clause 10.5.1 shall be one half
(½) of
the amount of that Repayment Instalment due on the next Repayment Date
rather
than one third (⅓).
|
10.6
|
Additional
payments to Retention Accounts If
for any reason the amount standing to the credit of an Earnings
Account is
insufficient to make any transfer to the relevant Retention
Account
required by Clause 10.5, the Borrower shall, without demand,
procure that
there is credited to the relevant Retention Account, on the
date on which
the relevant amount would have been transferred from the relevant
Earnings
Account, an amount equal to the amount of the
shortfall.
|
|
10.7
|
Application
of Retention Accounts The
Borrower shall procure that there is transferred from the relevant
Retention Account to the Agent:
|
|
10.7.1
|
on
each Repayment Date, the amount of the Repayment Instalment
then due;
and
|
| 10.7.2 |
on
each Interest Payment Date, the amount of interest then
due,
|
and
the
Borrower irrevocably authorises the Agent and will procure that each
Collateral
Owner irrevocably instructs the Agent to make those transfers.
38
|
10.8
|
Borrower's
obligations not affected If
for any reason the amount standing to the credit of a Retention
Account is
insufficient to pay any Repayment Instalment or to make any
payment of
interest when due, the Borrower's obligation to pay that Repayment
Instalment or to make that payment of interest shall not be
affected.
|
|
10.9
|
Payments
from Earnings Accounts The
amounts credited to an Earnings Account shall, subject to the
other terms
of this Agreement and the terms of the Coordination Agreement,
be applied
by the Agent in the following order of
priority:
|
| 10.9.1 |
first,
in or towards payment of all amounts then due and owing to
the Agent
and/or the Finance Parties under the Finance Documents in respect
of fees,
commissions, expenses and other costs incurred by the Finance
Parties;
|
| 10.9.2 |
second,in
satisfaction of the Borrower's obligations under Clause
10.5;
|
| 10.9.3 |
third,
in the maintenance or satisfaction of the Borrower's obligations
under
Clause 12.3.18;
|
| 10.9.4 |
fourth,
in the maintenance or satisfaction of the Borrower's obligations
under
Clause 10.7 and 10.15;
|
| 10.9.5 |
fifth,
in satisfaction of the Borrower's obligations under the Master
Agreement;
|
| 10.9.6 |
sixth,
in payment of the Operating Expenses of the Vessel owned by
the Collateral
Owner in whose name such Earnings Account is open;
and
|
| 10.9.7 |
seventh,
(and subject always to no Default having occurred and then
being
continuing) to the Borrower or to its
order.
|
| 10.10 |
Restriction
on withdrawal During
the Facility Period no sum may be withdrawn from the Accounts
(except in
accordance with this Clause 10)
without the prior written consent of the Agent (such consent
not to be
unreasonably withheld).
|
|
10.11
|
Relocation
of Accounts At
any time following the occurrence and during the continuation
of an Event
of Default, the Agent may without the consent of the Borrower
or a
Collateral Owner relocate any of the Accounts to any other
branch of the
Agent, without prejudice to the continued application of this
Clause
10
and the rights of the Finance
Parties
under the Finance Documents.
|
39
|
10.12
|
Application
after acceleration From
and after the giving of notice to the Borrower by the Agent
under Clause
13.2, the Borrower shall procure that all sums from time to
time standing
to the credit of the Accounts are, subject to the terms of
the
Coordination Agreement, immediately transferred to the Agent
for
application in accordance with the provisions of Clause 10.13
and the
Borrower irrevocably authorises the Agent and will procure
that each
Collateral Owner irrevocably instructs the Agent to make those
transfers.
|
|
10.13
|
General
application of moneys
The Borrower, subject to Clause 10.14 and the terms of the
Coordination
Agreement, irrevocably authorises and shall procure that each
Collateral
Owner irrevocably authorises the Agent
and the Security Agent to
apply all sums which either of them may
receive:
|
|
10.13.1
|
pursuant
to a sale or other disposition of a Vessel or any right, title
or interest
in a Vessel; or
|
|
10.13.2
|
by
way of payment of any sum in respect of the Insurances, Earnings,
Requisition Compensation or Charters;
or
|
| 10.13.3 |
by
way of transfer of any sum from any of the Accounts;
or
|
|
10.13.4
|
otherwise
arising under or in connection with this Agreement and any
Security
Document,
|
in
the
following order of priority:
|
(a)
|
firstly,
in or towards reimbursement of fees and expenses of the Finance
Parties;
|
|
(b)
|
secondly,
by application in or towards repayment of accrued but unpaid
interest and
fees provided that if the amount to be applied is insufficient
to satisfy
the full amount specified in paragraph (b), it shall be split
between the
Lenders on a pro-rata basis calculated by reference to the
proportion
which the amount of interest and fees owed to a Lender bears
to the
aggregate amount of interest and fees owed to all the
Lenders;
|
|
(c)
|
thirdly,
by application in or towards repayment of the balance of the
Indebtedness
provided that if the amount to be applied is insufficient to
satisfy the
full amount specified in this paragraph (c), it shall be split
between the
Lenders and the Swap Provider on a pro-rata basis calculated
by reference
to the proportion which the amount of the balance of the Indebtedness
owed
to a Lender or the Swap Provider bears to the aggregate amount
of the
balance of the Indebtedness owed to all of the Lenders and
the Swap
Provider;
|
40
| (d) |
fourthly,
by payment to the Borrower and/or a Collateral Owner and/or
to anyone else
entitled thereto
|
| 10.14 |
Application
of moneys on sale or Total Loss The
Borrower irrevocably authorises and shall procure that each
Collateral
Owner irrevocably authorises the Agent
and the Security Agent to
apply all sums which either of them may receive pursuant to
a sale by that
Collateral Owner of its Vessel or a Total Loss of its Vessel
in or towards
satisfaction of the prepayment due and payable by virtue of
that sale or
Total Loss under Clause 6.3, but the Borrower's obligation
to make that
prepayment shall not be affected if those sums are insufficient
to satisfy
that obligation.
|
|
10.15
|
Additional
security If
at any time the Fair Market Value of a Vessel and the value
of any
additional security including, but not limited to, any Cash
Reserve Amount
credited to the Earnings Account applicable to that Vessel
(such value to
be the face amount of the deposit (in the case of cash), determined
conclusively by appropriate advisers appointed by the Agent
(in the case
of other charged assets), and reasonably determined by the
Agent in its
discretion (in all other cases)) for the time being provided
to the
Security Agent under this Clause 10.15 in respect of that Xxxxxx is
less than the relevant Security Percentage the Borrower shall,
within
thirty (30) days of receipt of the Agent's request, at the
Borrower's
option:
|
| 10.15.1 |
pay
to the Security
Agent or
to its nominee a cash deposit in the amount of the shortfall
to be secured
in favour of the Security
Agent as
additional security for the payment of the Indebtedness; or
|
| 10.15.2 |
constitute
to the satisfaction of the Security
Agent
such other
non-cash additional security in amount and form reasonably
acceptable to
the Security
Agent in
its discretion; or
|
41
| 10.15.3 |
prepay
the amount of the Indebtedness which will ensure that the aggregate
of the
market value of the Vessels (determined as stated above) and
the value of
any such additional security is not less than the relevant
Security
Percentage
|
provided
that the Agent shall, when calculating the Security Percentage in accordance
with the opening paragraph of this Clause 10.15, add in and offset any
surplus
value by which the Fair Market Value of any other Vessel and the Cash
Reserve
Amount credited to the Earnings Account applicable to that Vessel exceeds
the
relevant Security Percentage applicable to its Vessel Tranche.
Clauses
5.4, 6.2.2 and 6.7 shall apply, mutatis
mutandis,
to any
prepayment made under this Clause 10.15 and the value of any additional
security
provided shall be determined as stated above.
The
Agent
may obtain a Fair Market Value for a Vessel at any time during the Facility
Period provided that the Borrower shall only pay for the cost of obtaining
such
valuation once in any calendar year unless, as a result of such valuation,
an
Event of Default shall occur and be continuing, in which case the Borrower
shall
be liable for the cost thereof.
| 10.16 |
Release
of additional
security
|
If
the
Borrower has provided further security to the Security Agent in respect
of a
Vessel pursuant to Clause 10.15 ("Further
Security")
and
the Agent has, following the provision of such Further Security, obtained
or
calculated a subsequent Fair Market Value in respect of that Vessel either
(i)
in accordance with Clause 10.15 or (ii) at the specific written request
of the
Borrower (in which case any Fair Market Value so obtained shall be at
the
Borrower's cost), the Security Agent, shall as soon as reasonably practicable
after notice in writing from the Borrower to do so, release such Further
Security as is requested by the Borrower in such notice provided that
the
Security Agent is satisfied that, immediately following such release,
the latest
Fair Market Value of the Vessel or Vessels in question will, equal or
exceed the
relevant Security Percentage.
42
| 11 |
Representations
|
|
11.1
|
Representations
The Borrower makes the representations and warranties set out
in this
Clause 11.1
to
each
Finance Party on
the date of this Agreement except as otherwise disclosed by
the Borrower
to the Agent in writing before the date of this Agreement with
specific
reference to this Agreement.
|
|
11.1.1
|
Status
Each
Security Party (which is not an individual) is a corporation,
duly
incorporated and validly existing under the law of its jurisdiction
of
incorporation and has the power to own its assets and carry
on its
business as it is being conducted.
|
|
11.1.2
|
Binding
obligations The
obligations expressed to be assumed by each Security Party
in each Finance
Document to which it is a party are, subject to any general
principles of
law limiting its obligations which are specifically referred
to in any
legal opinion delivered pursuant to Clause 3, legal, valid,
binding and
enforceable obligations.
|
|
11.1.3
|
Non-conflict
with other obligations The
entry into and performance by each Security Party of, and the
transactions
contemplated by, the Finance Documents do not conflict
with:
|
|
(a)
|
any
law or regulation applicable to that Security
Party;
|
|
(b)
|
the
constitutional documents of that Security Party;
or
|
|
(c)
|
any
document binding on that Security Party or any of its
assets,
|
and
in
borrowing the Loan, the Borrower is acting for its own account.
|
11.1.4
|
Power
and authority Each
Security Party has the power to enter into, perform and deliver,
and has
taken all necessary action to authorise its entry into, performance
and
delivery of, the Finance Documents to which it is a party and
the
transactions contemplated by those Finance
Documents.
|
43
|
11.1.5
|
Validity
and admissibility in evidence All
consents, licences, approvals, authorisations, filings and
registrations
required or desirable:
|
|
(a)
|
to
enable each Security Party lawfully to enter into, exercise
its rights and
comply with its obligations in the Finance Documents to which
it is a
party or to enable each
Finance Party
to
enforce and exercise all its rights under the Finance Documents;
and
|
|
(b)
|
to
make the Finance Documents to which any Security Party is a
party
admissible in evidence in its jurisdiction of
incorporation,
|
have
been
obtained or effected and are in full force and effect, with the exception
only
of the registrations referred to in Part II of Schedule 5.
|
11.1.6
|
Governing
law and enforcement The
choice of English, Hong Kong or Singapore law as the governing
law of any
Finance Document expressed to be governed by that law will
be recognised
and enforced in the jurisdiction of incorporation of each relevant
Security Party, and any judgment obtained in England in relation
to any
such Finance Document will be recognised and enforced in the
jurisdiction
of incorporation of each relevant Security
Party.
|
|
11.1.7
|
Deduction
of Tax No
Security Party is required under the law of its jurisdiction
of
incorporation to make any deduction for or on account of Tax
from any
payment it may make under any Finance
Document.
|
|
11.1.8
|
No
filing or stamp taxes Under
the law of jurisdiction of incorporation of each relevant Security
Party
it is not necessary that the Finance Documents (other than
the Mortgages,
the Assignments, the Assignments of Charters, the Accounts
Charges, the
Collateral Mortgages, the Collateral Assignments, the Collateral
Assignments of Charters and the Collateral Accounts Charges)
be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax
be paid on or
in relation to the Finance Documents or the transactions contemplated
by
the Finance Documents.
|
|
11.1.9
|
No
default No
Event of Default has occurred and is
continuing.
|
|
11.1.10
|
No
misleading information Any
factual information provided by any Security Party to any
Finance Party
was true and accurate in all material respects as at the date
is was
provided.
|
44
|
11.1.11
|
Pari
passu ranking The
payment obligations of each Security Party under the Finance
Documents to
which it is a party rank at least pari passu with the claims
of all its
other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies
generally.
|
|
11.1.12
|
No
proceedings pending or threatened No
litigation, arbitration or administrative proceedings of or
before any
court, arbitral body or agency have been started which, if
adversely
determined, would reasonably be expected to have a Material
Adverse
Effect.
|
|
11.1.13
|
Disclosure
of material facts The
Borrower is not aware of any material facts or circumstances
which have
not been disclosed to the Agent and which might, if disclosed,
have
adversely affected the decision of a person considering whether
or not to
make loan or swap facilities of the nature contemplated by
this Agreement
available to the Borrower.
|
|
11.1.14
|
No
established place of business in the UK or US
No
Security Party has an established place of business in the
United Kingdom
or the United States of America.
|
|
11.1.15
|
Completeness
of Relevant Documents The
copies of any Relevant Documents provided or to be provided
by the
Borrower to the Agent in accordance with Clause 3 are,
or will be, true and accurate copies of the originals and represent,
or
will represent, the full agreement between the parties to those
Relevant
Documents in relation to the subject matter of those Relevant
Documents
and there are no commissions, rebates, premiums or other payments
due or
to become due in connection with the subject matter of those
Relevant
Documents other than in the ordinary course of business or
as disclosed
to, and approved in writing by, the
Agent.
|
|
11.1.16
|
Ownership
and control of Collateral Owners
Each Collateral Owner is or will be following the Merger a
wholly owned
Subsidiary of the Borrower and is controlled by the
Borrower.
|
|
11.2
|
Repetition
Each
representation and warranty in Clause 11.1 (other than in respect
of
Clauses 11.1.5, 11.1.7, 11.1.8, 11.1.9, 11.1.12, 11.1.13 and
11.1.15) is
deemed to be repeated by the Borrower by reference to the facts
and
circumstances then existing on the date of each Drawdown Notice
and the
first day of each Interest Period.
|
45
|
11.3
|
Qualification
The representations and warranties made or to be made by the
Borrower
under pursuant to clause 11.1 are and shall be construed as
being made
subject to the reservations or qualifications as to matters
of law set
forth in the legal opinions to be delivered to the Agent pursuant
to
Clause 3.
|
| 12 |
Undertakings
and Covenants
|
The
undertakings and covenants in this Clause 12
remain
in force for the duration of the Facility Period.
| 12.1 |
Information
Undertakings
|
|
12.1.1
|
Financial
statements The
Borrower shall supply to the Agent as soon as the same become
available,
but in any event within one hundred and eighty (180) days after
the end of
each of its financial years, the Borrower's audited consolidated
(so as to
include the Collateral Owners) financial statements for that
financial
year, together with a Compliance Certificate, signed by two
directors of
the Borrower, setting out (in reasonable detail) computations
as to
compliance with Clause 12.2 as
at the date as at which those financial statements were drawn
up.
|
|
12.1.2
|
Requirements
as to financial statements Each
set of financial statements delivered by the Borrower under
Clause
12.1.1:
|
|
(a)
|
shall
be certified by two (2) directors of the Borrower as fairly
representing
its financial condition and that of the Collateral Owners as
at the date
as at which those financial statements were drawn up;
and
|
|
(b)
|
shall
be prepared using GAAP, accounting practices and financial
reference
periods consistent with those applied in the preparation of
the Original
Financial Statements unless, in relation to any set of financial
statements, the Borrower notifies the Agent that there has
been a change
in GAAP, the accounting practices or reference periods and
the Borrower's
auditors deliver to the Agent:
|
|
(i)
|
a
description of any change necessary for those financial statements
to
reflect the GAAP, accounting practices and reference periods
upon which
the Original Financial Statements were prepared;
and
|
46
|
(ii)
|
sufficient
information, in form and substance as may be reasonably required
by the
Agent, to enable the Agent to make an accurate comparison between
the
financial position indicated in those financial statements
and that
indicated in the Original Financial
Statements.
|
|
12.1.3
|
Interim
financial statements
The Borrower shall supply to the Agent as soon as the same
become
available, but in any event within one hundred and twenty (120)
days after
the end of each half-year during each of its financial years,
the
Borrower's and each Collateral Owner's unaudited semi-annual
financial
statements for that half-year.
|
|
12.1.4
|
Information:
miscellaneous The
Borrower shall supply to the Agent:
|
|
(a)
|
all
documents dispatched by the Borrower or any Collateral Owner
to its
shareholders (or any class of them) or its creditors save for
information
which is confidential in relation to third parties which is
not
disclosable by law or regulatory requirement, generally at
the same time
as they are dispatched;
|
|
(b)
|
promptly
upon becoming aware of them, details of any litigation, arbitration
or
administrative proceedings which are current, threatened or
pending
against any Security Party, and which would, if adversely determined,
have
a Material Adverse Effect; and
|
|
(c)
|
promptly,
such further information regarding the financial condition,
business and
operations of any Security Party as the Agent may reasonably
request save
for information which is confidential in relation to third
parties which
is not disclosable by law or regulatory requirement including,
without
limitation, cash flow analyses and details of the Operating
Expenses of
any Vessel.
|
47
|
12.1.5
|
Notification
of default
|
The
Borrower shall notify the Agent of any Default which has occurred and
is
continuing (and the steps, if any, being taken to remedy it) promptly
upon
becoming aware of its occurrence.
| 12.1.6 |
"Know
your customer" checks If:
|
|
(a)
|
the
introduction of or any change in (or in the interpretation,
administration
or application of) any applicable law or regulation made after
the date of
this Agreement;
|
|
(b)
|
any
change in the status of the Borrower after the date of this
Agreement;
or
|
|
(c)
|
a
proposed assignment or transfer by a Lender of any of its rights
and
obligations under this Agreement to
a party that is not a Lender prior to such assignment or
transfer,
|
obliges
the Agent
or
any Lender
(or, in the case of (c) above, any prospective new Lender) to comply
with "know
your customer" or similar identification procedures in circumstances
where the
necessary information is not already available to it, the Borrower shall
promptly upon the request of the Agent
or
any Lender
supply, or procure the supply of, such documentation and other evidence
as is
reasonably requested by the Agent (for itself or
on
behalf of any Lender) or any Lender for itself (or,
in
the case of (c) above, on behalf of any prospective new Lender) in order
for the
Agent
or
that
Lender
(or, in the case of (c) above, any prospective new Lender) to carry out
and be
satisfied it has complied with all necessary "know your customer" or
other
similar checks under all applicable laws and regulations pursuant to
the
transactions contemplated in the Finance Documents.
48
|
12.2
|
Financial
covenants
|
The
Borrower shall, on a consolidated basis, maintain throughout the Facility
Period:-
| 12.2.1 |
minimum
available cash of fifteen million Dollars ($15,000,000) comprising
(i) any
amounts credited to the Earnings Accounts (excluding Projected
Drydocking
Costs), (ii) free cash and (iii) undrawn amounts of working
capital
facilities;
|
| 12.2.2 |
a
minimum Value Adjusted Net Worth of one hundred million Dollars
($100,000,000);
|
| 12.2.3 |
amaximum
Value Adjusted Leverage of seventy five per cent (75%);
and
|
| 12.2.4 |
a minimum
Interest Coverage ratio of 2.25:1
|
and
for
the purposes of this clause and each Compliance Certificate:-
"Value
Adjusted Net Worth"
means
the paid
up
capital of the Borrower plus capital reserves plus unappropriated profits
or
losses after revaluation of all vessels owned by the Borrower and its
Subsidiaries (as determined by the Agent acting reasonably);
"Value
Adjusted Leverage"
means
total liabilities divided by the Fair Market Value of all vessels owned
by the
Borrower and its Subsidiaries;
"Interest
Coverage"
means
EBITDA divided by interest expense;
"EBITDA"
means
earnings before interest, tax, depreciation and amortisation.
The
Agent
shall, semi-annually during the Facility Period, test for compliance
with the
financial covenants under this Clause by reference to the financial statements
provided under Clause 12.1.
49
|
12.3
|
General
undertakings
|
| 12.3.1 |
Authorisations
The
Borrower shall promptly:
|
|
(a)
|
obtain,
comply with and do all that is necessary to maintain in full
force and
effect; and
|
|
(b)
|
upon
written request supply certified copies to the Agent of,
|
any
consent, licence, approval or authorisation required under any applicable
law or
regulation to enable each Security Party to perform its respective obligations
under the Finance Documents to which it is a party and to ensure the
legality,
validity, enforceability or admissibility in evidence in the jurisdiction
of
incorporation of each relevant Security Party of any Finance Document
to which
it is a party.
| 12.3.2 |
Compliance
with laws The Borrower
shall comply in all respects with all laws to which it may
be subject, if
failure so to comply would materially impair its ability to
perform its
obligations under the Finance Documents to which it is a
party.
|
| 12.3.3 |
Conduct
of business The Borrower
shall carry on and conduct its business in a
proper and efficient manner, file all requisite tax returns
and pay all
tax which becomes due and payable (except where contested in
good
faith).
|
| 12.3.4 |
Evidence
of good standing
The Borrower will from time to time if requested by the Agent
provide the
Agent with evidence in form and substance reasonably
satisfactory to the Agent that the Security Parties remain
in good
standing.
|
| 12.3.5 |
Negative
pledge and no disposals in respect of the Collateral Owners
The
Borrower shall procure that no Collateral Owner shall, without
the prior
written consent of the Agent (such consent not to be unreasonably
withheld
or delayed), create nor permit to subsist any Encumbrance or
other third
party rights (other than a Permitted Encumbrance) over any
of such
Collateral Owner's present or future assets or undertaking
nor dispose of
any those assets or of all or part of that undertaking (otherwise
then, in
accordance with Clause 12.4.1).
|
50
| 12.3.6 |
Merger
The
Borrower shall procure that no Collateral Owner shall,
without the prior
written consent of the Agent (such consent not to be unreasonably
withheld
or delayed) enter into any amalgamation, demerger, merger
or corporate
reconstruction.
|
| 12.3.7 |
Change
of business The
Borrower shall not without the prior written consent of the
Agent (such
consent not to be unreasonably withheld or delayed) make any
substantial
change to the general nature of its business from that carried
on at the
date of this Agreement.
|
| 12.3.8 |
No
other business The
Borrower shall procure that no Collateral Owner shall without
the prior written consent of the Agent (such consent not to
be
unreasonably withheld or delayed) engage
in any business other than the ownership, operation, chartering
and
management of its Vessel.
|
| 12.3.9 |
No
place of business in UK or US The
Borrower shall not have, and shall procure that no Collateral
Owner shall
have, an established place of business in the United Kingdom
or the United
States of America at any time during the Facility
Period.
|
| 12.3.10 |
No
borrowings The
Borrower shall not without
the prior written consent of the Agent (such consent not to
be
unreasonably withheld or delayed)
incur any Financial Indebtedness (except for the Loan, the
Double Hull
Facility and unsecured Financial Indebtedness provided that
any such
unsecured Financial Indebtedness in excess of the ten million
Dollars
($10,000,000) in aggregate is subordinated to the Loan) and
the Borrower
shall procure that no Collateral Owner shall, without the prior
written
consent of the Agent (such consent not to be unreasonably withheld
or
delayed) incur any Financial Indebtedness (except for Existing
Indebtedness, Financial Indebtedness directly incurred pursuant
to the
Finance Documents and unsecured Financial Indebtedness subordinated
to the
Loan).
|
51
| 12.3.11 |
No
loans or other financial commitments The
Borrower shall not, and shall procure that no Collateral Owner
shall,
without
the prior written consent of the Agent (such consent not to
be
unreasonably withheld or delayed) make
any loan except, in the case of the Borrower or a Collateral
Owner, for
Inter-Company Loans and normal trade credit in the ordinary
course of
business, nor enter into any guarantee or indemnity or otherwise
voluntarily assume any actual or contingent liability in respect
of any
obligation of any other person except for guarantees and indemnities
from
time to time required in the ordinary course by any protection
and
indemnity or war risks association with which a Vessel is entered,
guarantees required to procure the release of a Vessel from
arrest,
detention, attachment or levy or guarantees or undertakings
required for
the salvage of a Vessel and except, in the case of a Collateral
Owner, for
the Loan and the Borrower and each Collateral Owner agrees
that it shall
not, following a Default which has occurred and is continuing,
accept
repayment of an Inter-Company Loan or payment of any interest
on an
Inter-Company Loan without the prior written consent of the
Agent
(such
consent not to be unreasonably withheld or delayed).
|
| 12.3.12 |
No
dividends The
Borrower shall not, and shall procure that no Collateral Owner
shall,
whilst a Default has occurred and is continuing, pay any dividends
or make
any other distributions to shareholders without the prior written
consent
of the Lenders (such
consent not to be unreasonably withheld or delayed).
|
| 12.3.13 |
Inspection
of records The Borrower
will permit the inspection of its financial records and accounts
from time
to time by the Agent.
|
| 12.3.14 |
No
change in Relevant Documents The
Borrower shall procure that, without the prior written consent
of the
Agent (such consent not to be unreasonably withheld or delayed),
there
shall be no termination of, material alteration to, or waiver
of any
material term of, any of the Relevant Documents which are not
Finance
Documents.
|
| 12.3.15 |
No
dealings with Master Agreement The
Borrower shall not assign, novate or encumber or in any other
way transfer
any of its rights or obligations under the Master
Agreement.
|
52
| 12.3.16 |
Flag
The Borrower shall procure that the Vessels are registered
in the
ownership of each relevant Collateral Owner under the laws
and flag of
Hong Kong and shall procure that the registration of the Vessels
shall not
be changed during the Facility Period without (i) in
the case of a change of registration to an Approved Flag,
the prior written consent of the Majority Lenders (such
consent not to be unreasonably withheld or delayed) or (ii)
in the case of
a change of registration to a country not being an Approved
Flag, the
prior written consent of all the Lenders (such consent not
to be
unreasonably withheld or delayed).
|
| 12.3.17 |
Undertaking
in respect of Collateral Owners
The Borrower hereby irrevocably agrees, undertakes and covenants
that,
throughout the Facility Period it will
ensure:-
|
| (a) |
there
is no material change to any shareholders agreement relating
to each
Collateral Owner whilst such Collateral Owner's Vessel
is the subject of
any of the Security
Documents;
|
| (b) |
any
Inter-Company Loan advanced by the Borrower to a Collateral
Owner shall be
unsecured and be subordinated to the rights of the Finance
Parties under
this Agreement whilst such Collateral Owner's Vessel is
the subject of any
of the Security Documents;
and
|
|
(c)
|
there
shall, following the Merger, be no change in the shareholding
or control
of any Collateral Owners whilst such Collateral Owner's Vessel
is the
subject of any of the Security
Documents.
|
| 12.3.18 |
Cash
reserve
The Borrower shall procure that, throughout the Facility Period,
a minimum
cash reserve of not less than the Cash Reserve Amount shall
be credited to
each Earnings Account provided that the Agent may, in its discretion
(acting reasonably) and provided the Borrower is in compliance
with its
obligations under Clause 12.2, allow a thirty (30) day period
for a short
term reduction in the Cash Reserve Amount on one or more Earnings
Accounts
to allow the Borrower or the relevant Collateral Owner to meet
contingencies which could not be expected to have arisen in
the Borrower's
or a Collateral Owner's ordinary course of
business.
|
53
| 12.3.19 |
Drydocking
The Borrower shall provide written estimates to the Agent of
the Projected
Drydocking Cost of each Vessel together with reasonable evidence
of how
that cost is calculated not less than twelve (12) months prior
to the
scheduled drydocking date of each Vessel (the "Drydocking
Date")
and, without prejudice and in addition to the Borrower's obligations
under
Clause 12.3.18, the Borrower shall procure that twenty five
per cent (25%)
of such Projected Drydocking Cost for each Vessel (the "Quarterly
Payments")
shall be credited to the relevant Vessel's Earnings Account
on or prior to
the date falling at three (3) monthly intervals (the "Quarter
Date")
from the date falling twelve (12) months prior to the Drydocking
Date (the
"Start
Date")
provided always that, in relation to the final Quarterly Payment,
that
final Quarterly Payment shall be made not less than thirty
(30) days prior
to the Drydocking Date. The Borrower may revise the Projected
Drydocking
Cost subject to providing the Agent with reasonable evidence
for such
revision on or prior to each Quarter Date during the twelve
(12) month
period preceding the Drydocking Date and to the extent such
revised
Projected Drydocking Cost differs, on each Quarter Date, from
the
Projected Drydocking Cost first provided by the Borrower to
the Agent, the
Quarterly Payments shall be adjusted to reflect one (1) quarter
of the
revised Projected Drydocking Cost.
|
| 12.3.20 |
Management
The Borrower shall procure that, throughout the Facility Period,
not less
than three (3) of its directors, one of whom being its chairman,
are
appointees of the Manager and that all executive officers of
the Borrower
are appointees of the Manager and that, without the prior written
consent
of the Agent (such consent not to be unreasonably withheld
or delayed),
there shall be no termination of, alteration to or waiver of
any material
term of the Management Agreement.
|
| 12.3.21 |
Associated
transactions
The Borrower shall not and shall procure that none of the Collateral
Owners nor any of its or their Subsidiaries shall, without
the prior
written consent of the Agent (such consent not to be unreasonably
withheld
or delayed), enter into any transactions with each other save
for the
Management Agreement, the Technical Management Agreements,
any other
agreements contemplated by or pursuant to the Share Purchase
Agreement and
any other agreements permitted pursuant to this
Agreement.
|
54
| 12.3.22 |
Change
of control
The Borrower shall procure that the shareholders of the Manager
maintain,
directly or indirectly a shareholding of no less than twenty
five per cent
(25%) of the Borrower excepting any dilution of such shareholding
following the Merger resulting from the raising of additional
equity by
the Borrower.
|
|
12.4
|
Vessel
undertakings
|
| 12.4.1 |
No
sale of Vessel
The Borrower shall procure that no Collateral Owner shall sell
or
otherwise dispose of its Vessel or any shares in its Vessel
nor agree to
do so without the prior written consent of the Agent which
consent shall
not be unreasonably withheld or delayed and which consent shall
be granted
if the net sales proceeds receivable upon completion of the
sale of such
Vessel would be no less than the higher of (i) the principal
amount of
that Vessel Tranche and (ii) the then current Fair Market Value
of that
Vessel.
|
|
12.4.2
|
No
chartering after Event of Default
Following the occurrence and during the continuation of an
Event of
Default the Borrower shall procure that no Collateral Owner
shall without
the prior written consent of the Agent (such consent not to
be
unreasonably withheld or delayed) let its Vessel on charter
(other than
pursuant to a Charter) or renew or extend any charter or other
contract of
employment (including a Charter) of its Vessel (nor agree to
do
so).
|
|
12.4.3
|
No
change in technical management
The Borrower shall procure that, without the prior written
consent of the
Agent (such consent not to be unreasonably withheld or delayed),
there
shall be no termination of, alteration to, or waiver of any
material term
of, the Technical Management Agreements in respect of any Vessel
and that
no Collateral Owner shall without the prior written consent
of the Lenders
(such consent not to be unreasonably withheld or delayed) permit
the
Technical Managers to further sub-contract or sub-delegate
the technical
management of its Vessel to any third
party.
|
55
|
12.4.4
|
Evidence
of current COFR
The Borrower shall procure that each Collateral Owner will,
if and for so
long as its Vessel trades in the United States of America and
Exclusive
Economic Zone (as defined in the United States Oil Pollution
Act 1990),
obtain, retain and provide the Agent with a copy of, a valid
Certificate
of Financial Responsibility for its Vessel under that Act and
will comply
with the requirements of that Act.
|
|
12.4.5
|
ISM
Code compliance
The Borrower shall procure that each Collateral Owner
will:
|
| (a) |
procure
that its Vessel remains for the duration of the Facility Period
subject to
a SMS;
|
|
(b)
|
maintain
a valid and current SMC for its Vessel throughout the Facility
Period and
provide a copy to the Agent;
|
|
(c)
|
procure
that the ISM Company maintains a valid and current DOC throughout
the
Facility Period and provide a copy to the Agent;
and
|
|
(d)
|
promptly
notify the Agent in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the SMC of its
Vessel or of
the DOC of the ISM Company.
|
|
12.4.6
|
ISPS
Code compliance The Borrower
shall procure that each Collateral Owner
will:
|
|
(a)
|
for
the duration of the Facility Period comply with the ISPS Code
in relation
to its Vessel and procure that its Vessel and the ISPS Company
comply with
the ISPS Code;
|
|
(b)
|
maintain
a valid and current ISSC for its Vessel throughout the Facility
Period and
provide a copy to the Agent; and
|
|
(c)
|
promptly
notify the Agent in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the ISSC of its
Vessel.
|
56
|
12.4.7
|
Annex
VI compliance
The Borrower
shall procure that each Collateral Owner
will:
|
|
(a)
|
for
the duration of the Facility Period comply with Xxxxx XX in
relation to
its Vessel and procure that its Vessel's master and crew are
familiar
with, and that its Vessel complies with, Xxxxx
XX;
|
|
(b)
|
maintain
a valid and current IAPPC for its Vessel throughout the Facility
Period
and provide a copy to the Agent;
and
|
|
(c)
|
promptly
notify the Agent in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the IAPPC of its
Vessel.
|
|
12.4.8
|
Inspection
The Lenders shall have the right to appoint a surveyor to inspect
up to
two of the Vessels once a year at reasonable times and on reasonable
prior
notice (at the expense of the Borrower) or, if an Event of
Default or a
casualty over a Vessel has occurred and is continuing where
the aggregate
claim against all the insurers in respect thereof exceeds,
one million
Dollars ($1,000,000) to inspect that Vessel at any time, and
the Borrower
shall procure that any such surveyor so appointed by the Lenders
shall be
permitted to board the Vessel to carry out an inspection as
to that
Vessel's then state and condition provided that the Security
Agent shall
restrict inspections or surveys to times when a Vessel is being
dry-docked
or at times when a Vessel's sailing schedule would not be
affected.
|
|
12.4.9
|
MARPOL
73/79
The Borrower shall procure that each Collateral Owner fulfils,
in respect
of its Vessel, all requirements prescribed for single hull
vessels under
MARPOL 73/79 and the Conditional Assessment Scheme (together
the
"Single
Hull Regulations")
and, in the case of each Vessel which is more than fifteen
(15) years old,
shall provide or procure that the relevant Collateral Owner
provides to
the Agent, on or around each anniversary of the date of this
Agreement,
evidence satisfactory to the Agent (acting reasonably) that
such
requirements have been and are being
fulfilled.
|
57
|
12.4.10
|
Flag
state consent
The Borrower shall provide the Agent, prior to 30 June 2010,
with evidence
of confirmation from the country in which those Vessels over
which the
Security Agent holds an Encumbrance are then flagged (the "Flag
State")
that the Flag State will allow those Vessels to trade beyond
31 December
2010 until 31 December 2015.
|
| 12.5 |
Charters
The Borrower shall, if a Charter terminates on a date prior
to the date on
which that Charter would expire by effluxion of time, use its
best
endeavours to procure that the relevant Collateral Owner secures
a
Substitute Charter within the Substitution Period and that
the relevant
Collateral Owner enters into an assignment of such Charter
during the
Substitution Period in favour of the Security Agent in the
same form,
mutatis mutandis, as the Assignment of Charter entered into
by the
Collateral Owner of that Vessel in respect of the Charter immediately
preceding the relevant Substitute
Charter.
|
| 12.6 |
Insurance
covenants
The Borrower shall procure that each Collateral Owner will
at its own
expense throughout the Facility Period ensure
that:
|
|
12.6.1
|
each
Vessel owned by a Collateral Owner remains insured against
marine risks
and war risks (including but not limited to blocking and trapping)
on an
agreed value basis for an amount which is the greater from
time to time of
(a) her full market value and (b) an amount which equals one
hundred and
twenty per cent (120%) of the amount of the Vessel Tranche
applicable to
that Vessel outstanding; and
|
|
12.6.2
|
that
Vessel remains entered in a protection and indemnity association
in both
protection and indemnity classes, or remains otherwise insured
against
protection and indemnity risks and liabilities (including,
without
limitation, protection and indemnity war risks and freight,
demurrage and
defence cover); and
|
|
12.6.3
|
that
Xxxxxx remains insured against oil pollution caused by the
Vessel for such
amounts as the Security Agent may from time to time approve
(acting
reasonably) unless that risk is covered to the satisfaction
of the
Security Agent by the Vessel's protection and indemnity entry
or
insurance; and
|
58
|
12.6.4
|
the
above Insurances are placed in such markets, in such currency,
on such
terms and conditions, and with such brokers, underwriters and
associations
(being members of the International Club Group so far as a
protection and
indemnity association is concerned) as the Security Agent shall
have
previously approved in writing (such approval not to be unreasonably
withheld).
|
| 12.7 |
Insurance
report The
Owner shall reimburse the Agent on demand for the cost incurred
by the
Agent in obtaining a report on the adequacy of the Insurances
from an
insurance adviser instructed by the Security Agent once prior
to the
relevant Drawdown Date applicable to a Vessel and annually
thereafter.
|
| 12.8 |
Mortgagees'
insurance The
Borrower agrees that the Agent shall be at liberty to take
out mortgagees'
interest insurance and mortgagees additional perils (oil pollution)
insurance in relation to each Vessel for not less than one
hundred ten per
cent (110%) of the Vessel Tranche applicable thereto and otherwise
on such
terms and conditions as the Agent may from time to time decide,
and the
Borrower shall from time to time on demand reimburse the Agent
for all
reasonable costs, premiums and expenses paid or incurred by
the Agent in
connection with such insurances.
|
| 13 |
Events
of Default
|
|
13.1
|
Events
of Default
Each of the events or circumstances set out in this Clause
13.1
is
an Event of Default.
|
|
13.1.1
|
Non-payment
The
Borrower does not pay on the due date any amount payable by
it under a
Finance Document at the place at and in the currency in which
it is
expressed to be payable (and so that, for this purpose, sums
payable on
demand shall be treated as having been paid at the stipulated
time if paid
within three (3) Business Days of demand) and such amount remains
unpaid
for three (3) days after the due
date.
|
|
13.1.2
|
Other
obligations A
Security Party does not comply with any provision of any of
the Relevant
Documents to which that Security Party or person is a party
(other than as
referred to in Clause 13.1.1).
|
No
Event
of Default under this Clause 13.1.2
will
occur if the failure to comply is capable of remedy and does not relate
either
to the Insurances or to compliance with Clause 10.15 and
is
remedied by the earliest of (i) ten (10) Business Days after the Agent
gives
notice to the Borrower of such Event of Default and of the action required
to
remedy it and (ii) ten (10) Business Days after the Borrower becomes
aware of
the failure to comply.
59
|
13.1.3
|
Misrepresentation
Any
representation, warranty or statement made or deemed to be
repeated by a
Security Party in any Finance Document or any other document
delivered by
a Security Party under or in connection with any Finance Document
is or
proves to have been incorrect or misleading in any material
respect when
made or deemed to be repeated and which has a Material Adverse
Effect.
|
|
13.1.4
|
Cross
default Any
Financial Indebtedness of a Security
Party:
|
|
(a)
|
is
not paid when due after any applicable grace period has expired;
or
|
|
(b)
|
is
declared to be, or otherwise becomes, due and payable before
its specified
maturity as a result of an event of default (however
described),
|
and
which, in respect of the Borrower exceeds, in aggregate or otherwise,
ten
million Dollars ($10,000,000).
|
13.1.5
|
Insolvency
|
|
(a)
|
A
Security Party is unable or admits inability to pay its debts
as they fall
due, suspends making payments on any of its debts (being, in
the case of
the Borrower, in excess, in aggregate or otherwise, of ten
million Dollars
($10,000,000)) or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its
creditors
with a view to rescheduling any of its Financial Indebtedness
(being, in
the case of the Borrower, in excess, in aggregate or otherwise,
of ten
million Dollars ($10,000,000)).
|
60
|
(b)
|
The
aggregate value of the assets of the Security Parties is less
than their
aggregate liabilities.
|
|
(c)
|
A
moratorium is declared in respect of any Financial Indebtedness
of a
Security Party (being, in the case of the Borrower, in excess,
in
aggregate or otherwise, of ten million Dollars
($10,000,000)).
|
|
13.1.6
|
Insolvency
proceedings Any
corporate action or legal proceedings is taken
for:
|
|
(a)
|
the
winding-up, dissolution, administration, bankruptcy (not being
an action,
proceedings or procedure which the relevant Security Party
can demonstrate
to the satisfaction of the Agent, by providing an opinion of
leading
counsel to that effect, is frivolous, vexations or an abuse
of the process
of the court or related to a claim to which the Security Party
has a good
defense and which is being vigorously contested by the Security
Party) or
reorganisation (by way of voluntary arrangement, scheme of
arrangement or
otherwise) of a Security Party (other than a solvent liquidation
or
reorganisation of a Security Party which has been approved
by the Agent
(such approval not to be unreasonably withheld or delayed));
|
|
(b)
|
a
composition, compromise, assignment or arrangement with any
creditor of a
Security Party (unless as part of a solvent reorganisation
which has been
approved by the Agent (such approval not to be unreasonably
withheld or
delayed));
|
|
(c)
|
the
appointment of a liquidator (other than in respect of a solvent
liquidation of a Security Party which has been approved by
the Agent (such
approval not to be unreasonably withheld or delayed)), receiver,
administrative receiver, administrator, compulsory manager,
or trustee or
other similar officer in respect of any Security Party or all
or a
substantial part of its assets; or
|
|
(d)
|
enforcement
of any Encumbrance over all or a substantial part of the assets
of a
Security Party,
|
or
any
analogous procedure is taken in any jurisdiction in which a Security
Party
carries on business or to whose courts any part
of
their assets is subject.
61
|
13.1.7
|
Creditors'
process Any
expropriation, attachment, sequestration, distress or execution
affects
any asset or assets of a Security Party having an aggregate
value of
twenty million Dollars ($20,000,000) and is not discharged
within fourteen
(14) days and such an event is likely to have a Material Adverse
Effect.
|
|
13.1.8
|
Change
in ownership or control There
is any change in the direct ownership or control of any Collateral
Owner
from that advised to the Agent by the Borrower at the date
of this
Agreement (save in accordance with the Share Purchase Agreement
or as is
otherwise permitted by the terms of this
Agreement).
|
|
13.1.9
|
Repudiation
A
Security Party (except a
Finance Party)
repudiates any of the Relevant Documents to which that Security
Party is a
party.
|
|
13.1.10
|
Impossibility
or illegality Any
event occurs which would, or would with the passage of time,
render
performance of any of the Relevant Documents by a Security
Party to any
such document impossible, unlawful or unenforceable by a
Finance Party
or
a Security Party unless the Relevant Document(s) are amended
or replaced
to the satisfaction of the Agent within fourteen (14) Business
Days of the
Borrower being notified by the Agent of such impossibility
or
unenforceability.
|
|
13.1.11
|
Conditions
subsequent Any
of the conditions referred to in Clause 3.4 is
not satisfied within the time specified in this Agreement or
otherwise
reasonably required by the Agent.
|
|
13.1.12
|
Curtailment
of business A
Security Party ceases, or threatens to cease, to carry on all
or a
substantial part of its business unless as part of a solvent
reorganisation which has been approved by the Agent (such approval
not to
be unreasonably withheld) or, as a result of intervention by
or under the
authority of any government, the business of a Security Party
is wholly or
partially curtailed or suspended, or all or a substantial part
of the
assets or undertaking of a Security Party is seized, nationalised,
expropriated or compulsorily acquired and any such event is
likely to have
a Material Adverse Effect.
|
62
|
13.1.13
|
Reduction
of capital A
Security Party reduces its issued or subscribed
capital.
|
|
13.1.14
|
Challenge
to registration The
registration of a Vessel or a Mortgage is cancelled or terminated
without
the prior written consent of the
Agent.
|
|
13.1.15
|
War
The
country of registration of a Vessel becomes involved in war
(whether or
not declared) or civil war or is occupied by any other power
and the Agent
in its discretion considers that, as a result, the security
conferred by
any of the Security Documents is materially
prejudiced.
|
|
13.1.16
|
Master
Agreement termination A
notice is given by the Swap Provider under section 6(a) of
the Master
Agreement, or by any person under section 6(b)(iv) of the Master
Agreement, in either case designating an Early Termination
Date for the
purpose of the Master Agreement, or the Master Agreement is
lawfully
terminated, cancelled, rescinded, revoked or otherwise ceases
to remain in
full force and effect.
|
| 13.1.17 |
Notice
of termination A
Collateral Owner gives notice to the Security
Agent to
terminate its obligations under a Guarantee and/or Double Hull
Collateral
Owner gives notice to the Security Agent to terminate its obligations
under a Collateral Guarantee.
|
| 13.1.18 |
Double
Hull Loan Agreement
An
Event of Default occurs under the Double Hull Loan
Agreement.
|
| 13.1.19 |
Material
adverse change
There occurs a change in the financial condition of the Borrower
by
reference to the financial statements referred to in Clause
12.1.1 and
such change is likely to have a Material Adverse
Effect.
|
|
13.2
|
Acceleration
If
an Event of Default occurs and is continuing unremedied the
Agent may by
notice to the Borrower cancel any part of the Maximum Loan
Amount not then
advanced and:
|
|
13.2.1
|
declare
that the Loan, together with accrued interest, and all other
amounts
accrued or outstanding under the Finance Documents are immediately
due and
payable, whereupon they shall become immediately due and payable;
and/or
|
63
|
13.2.2
|
declare
that the Loan is payable on demand, whereupon it shall immediately
become
payable on demand by the Agent.
|
| 14 |
Assignment and Sub-Participation
|
|
14.1
|
Lenders'
rights A
Lender
may assign any of its rights under this Agreement or transfer
by novation
any of its rights and obligations under this Agreement to any
third party,
to any other branch of that Lender or to any other bank or
financial
institution or to any special purpose vehicle, trust, fund
or other entity
which is engaged in or established for the purpose of making,
purchasing
or investing in loans or other financial assets and
may grant sub-participations in all or any part of its Commitments
and/or
its Contribution. Any such assignments, transfer or participation
may be
effected without the prior consent of the Borrower provided
that any such
assignment, transfer or participation is not illegal for the
Borrower and
provided the Borrower suffers no additional cost as a result
thereof.
|
|
Each
Lender hereby covenants to provide the Borrower with prior
notification of
any proposed assignment and/or transfer or sub-participation
under this
Clause 14.
|
|
14.2
|
Borrower's
co-operation The
Borrower will co-operate fully with a Lender in connection
with any
assignment, transfer or sub-participation by
that Xxxxxx;
will execute and procure the execution of such documents as
that Xxxxxx
may reasonably require in that connection; and irrevocably
authorises
any
Finance Party to
disclose to any proposed assignee, transferee or sub-participant
(whether
before or after any assignment, transfer or sub-participation
and whether
or not any assignment, transfer or sub-participation shall
take place) all
information relating to the Security Parties, the Loan, the
Relevant
Documents and the Vessels which any
Finance Party may
acting reasonably consider necessary or desirable.
|
|
14.3
|
Rights
of assignee Any
assignee of a Lender shall (unless limited by the express terms
of the
assignment) take the full benefit of every provision of the
Finance
Documents benefitting that Xxxxxx PROVIDED
THAT:
|
|
14.3.1
|
if,
as a result of circumstances existing at the date of the assignment,
the
Borrower would be obliged to make a payment to the assignee
under Clause
8.5 or
Clause 17.3, then the assignee shall only be entitled to receive
payment
under that Clause to the same extent as that Xxxxxx would have
been if the
assignment had not taken place; and
|
64
|
14.3.2
|
an
assignment will only be effective on notification by the Agent
to that
Xxxxxx and the assignee that the Agent is satisfied, where
the Agent is
not familiar with the assignee and/or otherwise if the assignee
is a bank
from a country that is on the blacklist of the Financial Action
Task Force
on Money Laundering ("FATF"),
it has complied with all necessary "Know your customer" or
other similar
checks under all applicable laws and regulations in relation
to the
assignment to the assignee.
|
|
14.4
|
Transfer
Certificates If
a Lender wishes to transfer any of its rights and obligations
under or
pursuant to this Agreement, it may do so by delivering to the
Agent a duly
completed Transfer Certificate, in which event on the Transfer
Date:
|
|
14.4.1
|
to
the extent that that Lender seeks to transfer its rights and
obligations,
the Borrower (on the one hand) and that Lender (on the other)
shall be
released from all further obligations towards the
other;
|
|
14.4.2
|
the
Borrower (on the one hand) and the transferee (on the other)
shall assume
obligations towards the other identical to those released pursuant
to
Clause 14.4.1 PROVIDED THAT if, as a result of circumstances
existing at
the date of the Transfer Certificate, the Borrower would be
obliged to
make a payment to the transferee under Clause 8.5 or
Clause 17.3, then the transferee shall only be entitled to
receive payment
under that Clause to the same extent as that Xxxxxx would have
been if the
transfer had not taken place; and
|
|
14.4.3
|
the
Agent, each of the Lenders and the transferee shall have the
same rights
and obligations between themselves as they would have had if
the
transferee had been an original party to this Agreement as
a
Lender
|
65
PROVIDED
THAT the
Agent
shall only be obliged to execute a Transfer Certificate once:
|
(a)
|
in
the case of a transferee with which the Agent is not familiar
and/or
otherwise if the transferee is a bank from a country that is
on the
blacklist of the FATF, it is satisfied it has complied with
all necessary
"know your customer" or other similar checks under all applicable
laws and
regulations in relation to the transfer to the transferee;
and
|
|
(b)
|
the
transferee has paid to the Agent for its own account a transfer
fee of one
thousand Dollars ($1,000).
|
In
order
to give effect to each Transfer Certificate the Finance Parties (other
than the
transferor Lender and the transferee Lender thereunder) and the Borrower
each
hereby irrevocably and unconditionally authorise the Agent to execute
on their
respective behalves each Transfer Certificate delivered to the Agent
pursuant to
this Clause 14.4 without the Agent being under any obligation to take
any
further instructions from or give any prior notice to, any of the Finance
Parties or the Borrower before doing so and the Agent shall so execute
each such
Transfer Certificate on behalf of those other Finance Parties and the
Borrower
immediately on its receipt of the same pursuant to this Clause
14.4.
The
Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrower and the other Finance Parties a copy
of that
Transfer Certificate.
|
14.5
|
Finance
Documents Unless
otherwise expressly provided in any Finance Document or otherwise
expressly agreed between a Lender and any proposed transferee
and notified
by that Lender to the Agent on or before the relevant Transfer
Date, there
shall automatically be assigned to the transferee with any
transfer of a
Lender's rights and obligations under or pursuant to this Agreement
the
rights of that Lender under or pursuant to the Finance Documents
(other
than this Agreement) which relate to the portion of that Xxxxxx's
rights
and obligations transferred by the relevant Transfer
Certificate.
|
|
14.6
|
No
assignment or transfer by the Borrower
The Borrower may not assign any of its rights or transfer any
of its
rights or obligations under the Finance
Documents.
|
|
14.7
|
Deed
of Accession
A
transfer of obligations will be effective only if the obligations
are
transferred in accordance with the provisions of this Agreement
and the
transferee thereof enters into the Coordination Agreement by
way of Deed
of Accession (as defined in the Coordination Agreement) in
accordance with
the terms thereof.
|
66
|
14.8
|
Security
over Xxxxxx's rights A
Lender may without consulting with or obtaining consent from
any Security
Party, at any time charge, assign or otherwise create security
in or over
(whether by way of collateral or otherwise) all or any of its
rights under
any Finance Document to secure obligations of that Lender including,
without limitation:
|
|
14.8.1
|
any
charge, assignment or other security to secure obligations
to a federal
reserve or central bank; and
|
| 14.8.2 |
in
the case of any Lender which is a fund, any charge, assignment
or other
security granted to any holders (or trustee or representatives
of holders)
of obligations owed, or securities issued, by that Lender as
security for
those obligations or securities.
|
except
that no such charge, assignment or security shall:
|
(a)
|
release
a Lender from any of its obligations under the Finance Documents
or
substitute the beneficiary of the relevant charge, assignment
or security
for the Lender as a party to any of the Finance Documents;
or
|
|
(b)
|
require
any payments to be made by a Security Party or grant to any
person any
more extensive rights than those required to be made or granted
to the
relevant Lender under the Finance
Documents.
|
|
14.9
|
Disclosure
of information
Any Lender may disclose to a prospective assignee, transferee
or to any
other person who may propose entering into contractual relations
with such
Lender in relation to this Agreement such information about
the Borrower
as such Lender shall consider appropriate if such Lender first
procures
that the relevant prospective assignee or transferee (the “Prospective
Assignee”)
shall undertake to the Borrower to keep secret and confidential
and not,
without the prior written consent of the Borrower, disclose
to any third
party any of the information, reports or documents supplied
by such Xxxxxx
provided however that the Prospective Assignee and such Lender
shall be
entitled to disclose any such information, reports or documents
in the
following situations:
|
|
14.9.1
|
in
relation to any proceedings arising out of this Agreement or
the other
Finance Documents to the extent considered necessary by the
Prospective
Assignee or such Lender to protect is interest;
or
|
67
|
14.9.2
|
pursuant
to a court order relating to discovery or otherwise;
or
|
|
14.9.3
|
pursuant
to any law or regulation or to any fiscal, monetary, tax, governmental
or
other competent authority; or
|
|
14.9.4
|
to
its auditors, legal or other professional advisers its head
office or
Subsidiaries.
|
In
addition, the Prospective Assignee and such Lender shall be entitled
to disclose
or use any such information, reports or documents if the information
contained
therein shall have emanated, in conditions free from confidentiality,
bona fide
from some person other than such Lender.
|
14.10
|
No
additional costs If
at the time of, or immediately after, any assignment by any
Lender of all
or any part of its rights or benefits under this Agreement
or any transfer
by any Lender of any part of the rights, benefits and/or obligations
under
this Agreement, or any change in the office through which it
lends for the
purposes of this Agreement, the Borrower would be obliged to
pay to the
assignee or transferee or (in the case of a change of lending
office) such
Lender any sum in excess of the sum (if any) which it would
have been
obliged to pay to such Lender under the relevant clause of
this Agreement
in the absence of such assignment, transfer or change, the
Borrower shall
not be obliged to pay the excess.
|
| 15 |
The
Agent, the Security Agent and the
Lenders
|
| 15.1 |
Appointment
|
|
15.1.1
|
Each
Lender appoints the Agent to act as its agent under and in
connection with
the Finance Documents and each Lender and the Agent appoints
the Security
Agent to act as its security agent for the purpose of the Security
Documents.
|
|
15.1.2
|
Each
Lender authorises the Agent and each Lender and the Agent authorises
the
Security Agent to exercise the rights, powers, authorities
and discretions
specifically given to the Agent or the Security Agent (as the
case may be)
under or in connection with the Finance Documents together
with any other
incidental rights, powers, authorities and
discretions.
|
68
|
15.1.3
|
The
Swap Provider appoints the Security Agent to act as its security
agent for
the purpose of the Security Documents and authorises the Security
Agent to
exercise the rights, powers, authorities and discretions specifically
given to the Security Agent under or in connection with the
Security
Documents together with any other incidental rights, powers,
authorities
and discretions.
|
|
15.1.4
|
Except
where the context otherwise requires, references in this Clause
15 to the
"Agent"
shall mean the Agent and the Security Agent individually and
collectively.
|
|
15.2
|
Authority
Each
Lender irrevocably authorises the Agent (subject to Clauses
15.4, 15.18
and 15.21):
|
|
15.2.1
|
to
execute any Finance Document (other than this Agreement and
the
Coordination Agreement) on its
behalf;
|
|
15.2.2
|
to
collect, receive, release or pay any money on its
behalf;
|
|
15.2.3
|
acting
on the instructions from time to time of the Majority Lenders
to give or
withhold any waivers, consents or approvals under or pursuant
to any
Finance Document; and
|
| 15.2.4 |
acting
on the instructions from time to time of the Majority Lenders
to exercise,
or refrain from exercising, any rights, powers, authorities
or discretions
under or pursuant to any Finance Document.
|
The
Agent
shall have no duties or responsibilities as agent or as security agent
other
than those expressly conferred on it by the Finance Documents and shall
not be
obliged to act on any instructions from the Lenders or the Majority Lenders
if
to do so would, in the opinion of the Agent, be contrary to any provision
of the
Finance Documents or to any law, or would expose the Agent to any actual
or
potential liability to any third party.
69
|
15.3
|
Trust
The
Security Agent agrees and declares, and each of the other Finance
Parties
acknowledges, that, subject to the terms and conditions of
this Clause
15.3,
the Security Agent holds the Trust Property on trust for the
Finance
Parties absolutely. Each of the other Finance Parties agrees
that the
obligations, rights and benefits vested in the Security Agent
shall be
performed and exercised in accordance with this Clause 15.3.
The Security Agent shall have the benefit of all of the provisions
of this
Agreement benefiting it in its capacity as security agent for
the Finance
Parties, and all the powers and discretions conferred on trustees
by the
Trustee Act 1925 (to the extent not inconsistent with this
Agreement). In
addition:
|
|
15.3.1
|
the
Security Agent and any attorney, agent or delegate of the Security
Agent
may indemnify itself or himself out of the Trust Property against
all
liabilities, costs, fees, damages, charges, losses and expenses
sustained
or incurred by it or him in relation to the taking or holding
of any of
the Trust Property or in connection with the exercise or purported
exercise of the rights, trusts, powers and discretions vested
in the
Security Agent or any other such person by or pursuant to the
Security
Documents or in respect of anything else done or omitted to
be done in any
way relating to the Security
Documents;
|
|
15.3.2
|
the
other Finance Parties acknowledge that the Security Agent shall
be under
no obligation to insure any property nor to require any other
person to
insure any property and shall not be responsible for any loss
which may be
suffered by any person as a result of the lack or insufficiency
of any
insurance; and
|
|
15.3.3
|
the
Finance Parties agree that the perpetuity period applicable
to the trusts
declared by this Agreement shall be the period of eighty years
from the
date of this Agreement.
|
The
provisions of Part I of the Trustee Act 2000 shall not apply to the Security
Agent or the Trust Property.
70
| 15.4 |
Limitations
on authority Except
with the prior written consent of all the Lenders, the Agent
shall not be
entitled to:
|
|
15.4.1
|
release
or vary any security given for the Borrower's obligations under
this
Agreement; nor
|
|
15.4.2
|
waive
the payment of any sum of money payable by any Security Party
under the
Finance Documents; nor
|
|
15.4.3
|
change
the meaning of the expressions "Majority
Lenders"
or "Margin";
nor
|
|
15.4.4
|
exercise,
or refrain from exercising, any right, power, authority or
discretion, or
give or withhold any consent, the exercise or giving of which
is, by the
terms of this Agreement, expressly reserved to the Lenders;
nor
|
|
15.4.5
|
extend
the due date for the payment of any sum of money payable by
any Security
Party under any Finance Document;
nor
|
|
15.4.6
|
take
or refrain from taking any step if the effect of such action
or inaction
may lead to the increase of the obligations of a Lender under
any Finance
Document; nor
|
|
15.4.7
|
agree
to change the currency in which any sum is payable under any
Finance
Document (other than in accordance with the terms of the relevant
Finance
Document); nor
|
|
15.4.8
|
agree
to amend this Clause 15.4.
|
|
15.5
|
Liability
Neither
the Agent nor any of its directors, officers, employees or
agents shall be
liable to the Lenders for anything done or omitted to be done
by the Agent
under or in connection with any of the Relevant Documents unless
as a
result of the Agent's gross negligence or wilful
misconduct.
|
|
15.6
|
Acknowledgement
Each
Lender acknowledges that:
|
|
15.6.1
|
it
has not relied on any representation made by the Agent or any
of the
Agent's directors, officers, employees or agents or by any
other person
acting or purporting to act on behalf of the Agent to induce
it to enter
into any Finance Document;
|
71
|
15.6.2
|
it
has made and will continue to make without reliance on the
Agent, and
based on such documents and other evidence as it considers
appropriate,
its own independent investigation of the financial condition
and affairs
of the Security Parties in connection with the making and continuation
of
the Loan;
|
|
15.6.3
|
it
has made its own appraisal of the creditworthiness of the Security
Parties; and
|
|
15.6.4
|
the
Agent shall not have any duty or responsibility at any time
to provide it
with any credit or other information relating to any Security
Party unless
that information is received by the Agent pursuant to the express
terms of
a Finance Document.
|
Each
Lender agrees that it will not assert nor seek to assert against any
director,
officer, employee or agent of the Agent or against any other person acting
or
purporting to act on behalf of the Agent any claim which it might have
against
them in respect of any of the matters referred to in this Clause 15.6.
|
15.7
|
Limitations
on responsibility The
Agent shall have no responsibility to any Security Party or
to any Lender
on account of:
|
|
15.7.1
|
the
failure of a Lender or of any Security Party to perform any
of its
obligations under a Finance Document;
nor
|
|
15.7.2
|
the
financial condition of any Security Party;
nor
|
|
15.7.3
|
the
completeness or accuracy of any statements, representations
or warranties
made in or pursuant to any Finance Document, or in or pursuant
to any
document delivered pursuant to or in connection with any Finance
Document;
nor
|
|
15.7.4
|
the
negotiation, execution, effectiveness, genuineness, validity,
enforceability, admissibility in evidence or sufficiency of
any Finance
Document or of any document executed or delivered pursuant
to or in
connection with any Finance
Document.
|
72
| 15.8 |
The
Agent's rights The
Agent may:
|
|
15.8.1
|
assume
that all representations or warranties made or deemed repeated
by any
Security Party in or pursuant to any Finance Document are true
and
complete, unless, in its capacity as the Agent, it has acquired
actual
knowledge to the contrary;
|
|
15.8.2
|
assume
that no Default has occurred unless, in its capacity as the
Agent, it has
acquired actual knowledge to the contrary;
|
|
15.8.3
|
rely
on any document or notice reasonably believed by it to be genuine;
|
|
15.8.4
|
rely
as to legal or other professional matters on opinions and statements
of
any legal or other professional advisers selected or approved
by
it;
|
|
15.8.5
|
rely
as to any factual matters which might reasonably be expected
to be within
the knowledge of any Security Party on a certificate signed
by or on
behalf of that Security Party; and
|
|
15.8.6
|
refrain
from exercising any right, power, discretion or remedy unless
and until
instructed to exercise that right, power, discretion or remedy
and as to
the manner of its exercise by the Lenders (or, where applicable,
by the
Majority Lenders) and unless and until the Agent has received
from the
Lenders any payment which the Agent may require on account
of, or any
security which the Agent may require for, any costs, claims,
expenses
(including legal and other professional fees) and liabilities
which it
considers it may incur or sustain in complying with those
instructions.
|
| 15.9 |
The
Agent's duties The
Agent shall:
|
|
15.9.1
|
if
requested in writing to do so by a Lender, make enquiry and
advise the
Lenders as to the performance or observance of any of the provisions
of
any Finance Document by any Security Party or as to the existence
of an
Event of Default; and
|
|
15.9.2
|
inform
the Lenders promptly of any Event of Default of which the Agent
has actual
knowledge.
|
73
|
15.10
|
No
deemed knowledge The
Agent shall not be deemed to have actual knowledge of the falsehood
or
incompleteness of any representation or warranty made or deemed
repeated
by any Security Party or actual knowledge of the occurrence
of any Default
unless a Lender or a Security Party shall have given written
notice
thereof to the Agent in its capacity as the Agent. Any information
acquired by the Agent other than specifically in its capacity
as the Agent
shall not be deemed to be information acquired by the Agent
in its
capacity as the Agent.
|
|
15.11
|
Other
business The
Agent may, without any liability to account to the Lenders,
generally
engage in any kind of banking or trust business with a Security
Party or
with a Security Party's subsidiaries or associated companies
or with a
Lender as if it were not the Agent.
|
|
15.12
|
Indemnity
The
Lenders shall, promptly on the Agent's request, reimburse the
Agent in
their respective Proportionate Shares, for, and keep the Agent
fully
indemnified in respect of all liabilities, damages, costs and
claims
sustained or incurred by the Agent in connection with the Finance
Documents (other than the Master Agreement), or the performance
of its
duties and obligations, or the exercise of its rights, powers,
discretions
or remedies under or pursuant to any Finance Document (other
than the
Master Agreement), to the extent not paid by the Security Parties
and not
arising from the Agent's gross negligence or wilful
misconduct.
|
|
15.13
|
Employment
of agents In
performing its duties and exercising its rights, powers, discretions
and
remedies under or pursuant to the Finance Documents, the Agent
shall be
entitled to employ and pay agents to do anything which the
Agent is
empowered to do under or pursuant to the Finance Documents
(including the
receipt of money and documents and the payment of money) and
to act or
refrain from taking action in reliance on the opinion of, or
advice or
information obtained from, any lawyer, banker, broker, accountant,
valuer
or any other person believed by the Agent in good faith to
be competent to
give such opinion, advice or
information.
|
|
15.14
|
Distribution
of payments The
Agent shall, subject to the terms of the Coordination Agreement,
pay
promptly to the order of each Lender that Xxxxxx's Proportionate
Share of
every sum of money received by the Agent pursuant to the Finance
Documents
(with the exception of any amounts payable pursuant to Clause
9 and/or any
Fee Letter and any amounts which, by the terms of the Finance
Documents,
are paid to the Agent for the account of the Agent alone or specifically
for the account of one or more Lenders) and until so paid such
amount
shall be held by the Agent on trust absolutely for that
Xxxxxx.
|
74
|
15.15
|
Reimbursement
The
Agent shall have no liability to pay any sum to a Lender until
it has
itself received payment of that sum. If, however, the Agent
does pay any
sum to a Lender on account of any amount prospectively due
to that Lender
pursuant to Clause 15.14 before
it has itself received payment of that amount, and the Agent
does not in
fact receive payment within five (5) Business Days after the
date on which
that payment was required to be made by the terms of the Finance
Documents, that Lender will, on demand by the Agent, refund
to the Agent
an amount equal to the amount received by it, together with
an amount
sufficient to reimburse the Agent for any amount which the
Agent may
certify that it has been required to pay by way of interest
on money
borrowed to fund the amount in question during the period beginning
on the
date on which that amount was required to be paid by the terms
of the
Finance Documents and ending on the date on which the Agent
receives
reimbursement.
|
|
15.16
|
Redistribution
of payments Unless
otherwise agreed between the Lenders and the Agent, if at any
time a
Lender receives or recovers by way of set-off, the exercise
of any lien or
otherwise from any Security Party, an amount greater than that
Xxxxxx's
Proportionate Share of any sum due from that Security Party
to the Lenders
under the Finance Documents (the amount of the excess being
referred to in
this Clause 15.16 and in Clause 15.17 as
the "Excess
Amount")
then:
|
|
15.16.1
|
that
Lender shall promptly notify the Agent (which shall promptly
notify each
other Lender);
|
|
15.16.2
|
that
Lender shall pay to the Agent an amount equal to the Excess
Amount within
ten (10) days of its receipt or recovery of the Excess Amount;
and
|
|
15.16.3
|
the
Agent shall treat that payment as if it were a payment by the
Security
Party in question on account of the sum due from that Security
Party to
the Lenders and shall account to the Lenders in respect of
the Excess
Amount in accordance with the provisions of this Clause
15.16.
|
75
However,
if a Lender has commenced any legal proceedings to recover sums owing
to it
under the Finance Documents and, as a result of, or in connection with,
those
proceedings has received an Excess Amount, the Agent shall not distribute
any of
that Excess Amount to any other Lender which had been notified of the
proceedings and had the legal right to, but did not, join those proceedings
or
commence and diligently prosecute separate proceedings to enforce its
rights in
the same or another court.
|
15.17
|
Rescission
of Excess Amount If
all or any part of any Excess Amount is rescinded or must otherwise
be
restored to any Security Party or to any other third party,
the Lenders
which have received any part of that Excess Amount by way of
distribution
from the Agent pursuant to Clause 15.16 shall
repay to the Agent for the account of the Lender which originally
received
or recovered the Excess Amount, the amount which shall be necessary
to
ensure that the Lenders share rateably in accordance with their
Proportionate Shares in the amount of the receipt or payment
retained,
together with interest on that amount at a rate equivalent
to that (if
any) paid by the Lender receiving or recovering the Excess
Amount to the
person to whom that Lender is liable to make payment in respect
of such
amount, and Clause 15.16.3 shall
apply only to the retained amount.
|
|
15.18
|
Instructions
Where
the Agent is authorised or directed to act or refrain from
acting in
accordance with the instructions of the Lenders or of the Majority
Lenders
each of the Lenders shall provide the Agent with instructions
within three
(3) Business Days of the Agent's request (which request may
be made orally
or in writing). If a Lender does not provide the Agent with
instructions
within that period, that Lender shall be bound by the decision
of the
Agent. Nothing in this Clause 15.18
shall limit the right of the Agent to take, or refrain from
taking, any
action without obtaining the instructions of the Lenders or
the Majority
Lenders if the Agent in its discretion considers it necessary
or
appropriate to take, or refrain from taking, such action in
order to
preserve the rights of the Lenders under or in connection with
the Finance
Documents. In that event, the Agent will notify the Lenders
of the action
taken by it as soon as reasonably practicable, and the Lenders
agree to
ratify any action taken by the Agent pursuant to this Clause
15.18.
|
76
|
15.19
|
Payments
All amounts payable to a Lender under this Clause 15
shall be paid to such account at such bank as that Lender may
from time to
time direct in writing to the
Agent.
|
|
15.20
|
"Know
your customer" checks Each
Lender shall promptly upon the request of the Agent supply,
or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent
to carry out
and be satisfied it has complied with all necessary "know your
customer"
or other similar checks under all applicable laws and regulations
pursuant
to the transactions contemplated in the Finance
Documents.
|
|
15.21
|
Resignation
Subject
to a successor being appointed in accordance with this Clause
15.21,
the Agent may resign as agent and/or security agent at any
time without
assigning any reason by giving to the Borrower and the Lenders
notice of
its intention to do so and the Agent shall resign if requested
to do so by
notice in writing signed by Xxxxxxx constituting Majority Xxxxxxx
and
copied to the Borrower, in which event the following shall
apply:
|
|
15.21.1
|
the
Lenders may (if the Agent has resigned) and shall (if the Majority
Xxxxxxx
have requested the Agent to resign) within thirty (30) days
after the date
of the Agent's notice appoint a successor to act as agent and/or
security
agent provided that, if they fail to do so, the Agent may appoint
any
other bank or financial institution as its
successor;
|
|
15.21.2
|
the
resignation of the Agent shall take effect simultaneously with
the
appointment of its successor on written notice of that appointment
being
given to the Borrower and the Lenders;
|
|
15.21.3
|
the
Agent shall thereupon be discharged from all further obligations
as agent
and/or security agent but shall remain entitled to the benefit
of the
provisions of this Clause 15;
and
|
|
15.21.4
|
the
Agent's successor and each of the other parties to this Agreement
shall
have the same rights and obligations amongst themselves as
they would have
had if that successor had been a party to this
Agreement.
|
77
|
15.22
|
No
fiduciary relationship Except
as provided in Clauses 15.3 and
15.14, the Agent shall not have any fiduciary relationship
with or be
deemed to be a trustee of or for any other person and nothing
contained in
any Finance Document shall constitute a partnership between
any two or
more Lenders or between the Agent and any other
person.
|
| 16 |
Set-Off
|
|
16.1
|
Set-off
At
any time following the occurrence of an Event of Default which
is
continuing, a Finance Party may
set off any matured obligation due from the Borrower under
any Finance
Document (to
the extent beneficially owned by that Finance Party) against
any matured obligation owed by that
Finance Party to
the Borrower, regardless of the place of payment, booking branch
or
currency of either obligation. If the obligations are in different
currencies, that
Finance Party may
convert either obligation at a market rate of exchange in its
usual course
of business for the purpose of the
set-off.
|
|
16.2
|
Master
Agreement rights The
rights conferred on the Swap Provider by this Clause 16 shall
be in
addition to, and without prejudice to or limitation of, the
rights of
netting and set off conferred on the Swap Provider by the Master
Agreement.
|
| 17 |
Payments
|
|
17.1
|
Payments
Each
amount payable by the Borrower under a Finance Document (other
than the Master Agreement) shall
be paid to such account at such bank as the Agent may from
time to time
direct to the Borrower in the Currency of Account and in such
funds as are
customary at the time for settlement of transactions in the
relevant
currency in the place of payment. Payment shall be deemed to
have been
received by the Agent on the date on which the Agent receives
authenticated advice of receipt, unless that advice is received
by the
Agent on a day other than a Business Day or at a time of day
(whether on a
Business Day or not) when the Agent in its discretion considers
that it is
impossible or impracticable for the Agent to utilise the amount
received
for value that same day, in which event the payment in question
shall be
deemed to have been received by the Agent on the Business Day
next
following the date of receipt of advice by the
Agent.
|
|
17.2
|
No
deductions or withholdings Each
payment (whether of principal or interest or otherwise) to
be made by the
Borrower under a Finance Document shall, subject only to Clause
17.3, be
made free and clear of and without deduction for or on account
of any
Taxes or other deductions, withholdings, restrictions, conditions
or
counterclaims of any nature.
|
78
|
17.3
|
Grossing-up
If
at any time any law requires (or is interpreted to require)
the Borrower
to make any deduction or withholding from any payment, or to
change the
rate or manner in which any required deduction or withholding
is made, the
Borrower will promptly notify the Agent and, simultaneously
with that
payment, will pay to the Agent whatever additional amount (after
taking
into account any additional Taxes on, or deductions or withholdings
from,
or restrictions or conditions on, that additional amount) is
necessary to
ensure that, after the deduction or withholding, the relevant
Finance Parties receive a
net sum equal to the sum which they would have received had
no deduction
or withholding been made.
|
|
17.4
|
Evidence
of deductions If
at any time the Borrower is required by law to make any deduction
or
withholding from any payment to be made by it under a Finance
Document,
the Borrower will pay the amount required to be deducted or
withheld to
the relevant authority within the time allowed under the applicable
law
and will, no later than thirty (30) days after making that
payment,
deliver to the Agent an original receipt issued by the relevant
authority,
or other evidence acceptable to the Agent, evidencing the payment
to that
authority of all amounts required to be deducted or withheld.
|
|
17.5
|
Claw-back
of Tax benefit If,
following any such deduction or withholding as is referred
to in Clause
17.3 from any payment by the Borrower a Finance Party shall
receive or be
granted and shall utilize the benefit of a credit against or
remission for
any Taxes payable by it, such Finance Party shall, subject
to the Borrower
having made any increased payment in accordance with Clause
17.3 and the
extent that such Finance Party can do so without prejudicing
the retention
of the amount of such credit or remission and without prejudice
to the
right of such Finance Party to obtain any other relief or allowance
which
may be available to it, reimburse the Borrowers with such amount
as such
Finance Party shall in its absolute discretion certify to be
the
proportion of such credit or remission as will leave such Finance
Party
(after such reimbursement) in no worse position than it would
have been in
had there been no such deduction or withholding from the payment
by the
Borrowers as aforesaid. Such reimbursement shall be made forthwith
upon
such Finance Party certifying that the amount of such credit
or remission
has been received by it. Nothing contained in this Agreement
shall oblige
any Finance Party to rearrange its tax affairs or to disclose
any
information regarding its tax affairs and computations. Without
prejudice
to the generality of the foregoing, the Borrowers shall not,
by virtue of
this Clause 17.4, be entitled to enquire about any Finance
Party’s tax
affairs.
|
79
|
17.6
|
Adjustment
of due dates If
any payment or transfer of funds to be made under a Finance
Document,
other than a payment of interest on the Loan or a payment under
the Master
Agreement, shall be due on a day which is not a Business Day,
that payment
shall be made on the next succeeding Business Day (unless the
next
succeeding Business Day falls in the next calendar month in
which event
the payment shall be made on the next preceding Business Day).
Any such
variation of time shall be taken into account in computing
any interest in
respect of that payment.
|
|
17.7
|
Control
Account
The Agent 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 under this Agreement.
The
Borrower's obligations to repay the Loan and to pay interest
and all other
sums due under this Agreement shall be evidenced by the entries
from time
to time made in the control account opened and maintained under
this
Clause 17.7 and those entries will, in the absence of manifest
error, be
conclusive and binding.
|
| 18 |
Notices
|
|
18.1
|
Communications
in writing Any
communication to be made under or in connection with this Agreement
shall
be made in writing and, unless otherwise stated, may be made
by fax or
letter.
|
|
18.2
|
Addresses
The
address and fax number (and the department or officer, if any,
for whose
attention the communication is to be made) of each party to
this Agreement
for any communication or document to be made or delivered under
or in
connection with this Agreement are:
|
|
18.2.1
|
in
the case of the Borrower, c/o V&P Law Firm, 15, Filikis Eterias Sq.,
10673 Athens, Greece (fax no: x00 000 000 0000) marked for
the attention
of Xxxxxx Xxxxxxxxxxxxx/Xxxxxx X. Xxxxxxxx;
|
80
|
18.2.2
|
in
the case of each
Lender, those appearing opposite its name in Schedule 1;
|
|
18.2.3
|
in
the case of the Agent, 00 Xxxxxxxx Xxxx, #00-00, Xxxxxxxxx
000000 (fax no:
x00 0000 0000) marked for the attention of Xxxxxx Xxxxxxx;
and
|
|
18.2.4
|
in
the case of the Swap Provider DVB Bank AG as swap provider,
Friedrich-Xxxxx-Xxxxxx
0-00, 00000 Xxxxxxxxx/Xxxx, Xxxxxxx
(fax no: x00
000 000 0000)
marked for the attention of "Treasury
Department";
and
|
|
18.2.5
|
in
the case of the Security Agent, 00 Xxxxxxxx Xxxx, #00-00, Xxxxxxxxx
000000
(fax no: x00 0000 0000) marked for the attention of Xxxxxx
Xxxxxxx;
|
or
any
substitute address, fax number, department or officer as any party may
notify to
the Agent
(or
the Agent may notify to the other parties, if a change is made by the
Agent) by
not
less than five (5) Business Days' notice.
|
18.3
|
Delivery
Any
communication or document made or delivered by one party to
this Agreement
to another under or in connection this Agreement will only
be
effective:
|
| 18.3.1 |
if
by way of fax, when received in legible form;
or
|
|
18.3.2
|
if
by way of letter, when it has been left at the relevant address
or five
(5) Business Days after being deposited in the post postage
prepaid in an
envelope addressed to it at that address;
|
and,
if a
particular department or officer is specified as part of its address
details
provided under Clause 18.2, if addressed to that department or
officer.
Any
communication or document to be made or delivered to the Agent will be
effective
only when actually received by the Agent.
81
All
notices from or to the Borrower shall be sent through the Agent.
|
18.4
|
Notification
of address and fax number Promptly
upon receipt of notification of an address, fax number or change
of
address, pursuant to Clause 18.2 or
changing its own address or fax number, the Agent shall notify
the other
parties to this Agreement.
|
|
18.5
|
English
language Any
notice given under or in connection with this Agreement must
be in
English. All other documents provided under or in connection
with this
Agreement must be:
|
|
18.5.1
|
in
English; or
|
|
18.5.2
|
if
not in English, and if so required by the Agent, accompanied
by a
certified English translation and, in this case, the English
translation
will prevail unless the document is a constitutional, statutory
or other
official document.
|
| 19 |
Partial
Invalidity
|
If,
at
any time, any provision of a Finance Document is or becomes illegal,
invalid or
unenforceable in any respect under any law of any jurisdiction, neither
the
legality, validity or enforceability of the remaining provisions nor
the
legality, validity or enforceability of such provision under the law
of any
other jurisdiction will in any way be affected or impaired.
| 20 |
Remedies
and Waivers
|
No
failure to exercise, nor any delay in exercising, on the part of any
Finance Party,
any
right or remedy under a Finance Document shall operate as a waiver, nor
shall
any single or partial exercise of any right or remedy prevent any further
or
other exercise or the exercise of any other right or remedy. The rights
and
remedies provided in this Agreement are cumulative and not exclusive
of any
rights or remedies provided by law.
| 21 |
Miscellaneous
|
|
21.1
|
No
oral variations No
variation or amendment of a Finance Document shall be valid
unless in
writing and signed on behalf of all the Finance
Parties.
|
82
|
21.2
|
Further
Assurance If
any provision of a Finance Document shall be invalid or unenforceable
in
whole or in part by reason of any future law or any decision
of any court,
or if the Relevant Documents at any time held by or on behalf
of the
Finance
Parties or any of them are
considered by the Lenders (acting reasonably) for any reason
insufficient
to carry out the terms of this Agreement, then from time to
time the
Borrower will promptly, on demand by the Agent, execute or
procure the
execution of such further documents as in the opinion of the
Lenders
(acting reasonably) are necessary to provide adequate security
for the
repayment of the Indebtedness.
|
|
21.3
|
Rescission
of payments etc. Any
discharge, release or reassignment by a
Finance Party of
any of the security constituted by, or any of the obligations
of a
Security Party contained in, a Finance Document shall be (and
be deemed
always to have been) void if any act (including, without limitation,
any
payment) as a result of which such discharge, release or reassignment
was
given or made is subsequently wholly or partially rescinded
or avoided by
operation of any law.
|
|
21.4
|
Certificates
Any
certificate or statement signed by an authorised signatory
of the Agent
purporting to show the amount of the Indebtedness (or any part
of the
Indebtedness) or any other amount referred to in any Finance
Document
shall, save for manifest error or on any question of law, be
conclusive
evidence as against the Borrower of that amount.
|
|
21.5
|
Counterparts
This
Agreement may be executed in any number of counterparts each
of which
shall be original but which shall together constitute the same
instrument.
|
|
21.6
|
Contracts
(Rights of Third Parties) Act 1999 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.
|
|
21.7
|
Disclosure
Subject to Clause 14.9, the Borrower irrevocably authorises
the Finance
Parties to provide, divulge and reveal from time to time information
and
details relating to the financial statements and accounts of
the Borrower,
the other Security Parties, the Relevant Documents and the
Loan to any
governmental or quasi-governmental bodies or authorities, any
head office,
branch, affiliate of a Finance Party and any investor or potential
investor in a securitisation (or similar transaction of broadly
equivalent
economic effect), any party to the Security Documents and any
other person
with regards any funding, operational arrangements or other
related
transaction including, without limitation, any enforcement,
assignment or
transfer of the rights and obligations of the Finance Parties
under the
Security Documents.
|
83
| 21.8 |
Publicity The
Borrower confirms that the Finance Parties may use certain
details related
to this transaction limited, unless the Borrower agrees otherwise,
to the
identity of the parties to the Agreement, the nature of the
facility, its
date and the amount of the Loan, for the purposes of producing
and
distributing a "tombstone" of the transaction and for inclusion
in such
deal listings as a Finance Party shall consider
appropriate.
|
| 22 |
Law and Jurisdiction
|
|
22.1
|
Governing
law This
Agreement shall in all respects be governed by and interpreted
in
accordance with English law.
|
|
22.2
|
Jurisdiction
For
the exclusive benefit of the Finance
Parties,
the parties to this Agreement irrevocably agree that the courts
of England
are to have jurisdiction to settle any disputes which may arise
out of or
in connection with this Agreement and that any proceedings
may be brought
in those courts.
|
|
22.3
|
Alternative
jurisdictions Nothing
contained in this Clause 22
shall limit the right of the Finance
Parties
to
commence any proceedings against the Borrower in any other
court of
competent jurisdiction nor shall the commencement of any proceedings
against the Borrower in one or more jurisdictions preclude
the
commencement of any proceedings in any other jurisdiction,
whether
concurrently or not.
|
|
22.4
|
Waiver
of objections The Borrower
irrevocably waives any objection which it may now or in the
future have to
the laying of the venue of any proceedings in any court referred
to in
this Clause 22,
and any claim that those proceedings have been brought in an
inconvenient
or inappropriate forum, and irrevocably agrees that a judgment
in any
proceedings commenced in any such court shall be conclusive
and binding on
it and may be enforced in the courts of any other
jurisdiction.
|
84
|
22.5
|
Service
of process Without
prejudice to any other mode of service allowed under any relevant
law:
|
|
22.5.1
|
the
Borrower irrevocably appoints Xxxxxxx Xxxxxx of 00 Xxxxxxx
Xxxxxx, Xxxxxx
X0 0XX (Attn: Xxxx Xxxxxxx) as its agent for service of process
in
relation to any proceedings before the English courts in connection
with
this Agreement;
|
|
22.5.2
|
DVB
Group Merchant Bank (Asia) Ltd and DVB Group AG (in each capacity
in which
they are a party to this Agreement) irrevocably appoint DVB
Bank AG acting
through its London branch at 00 Xxxxxxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx as
their agent for service of process in relation to any proceedings
before
the English courts in connection with this Agreement;
|
|
22.5.3
|
Deutsche
Schiffsbank Aktiengesellschaft irrevocably appoints its London
branch at
Xx.
0 Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx
as
its agent for service of process in relation to any proceedings
before the
English courts in connection with this
Agreement;
|
|
22.5.4
|
Skandinaviska
Enskilda Xxxxxx XX (publ) irrevocably appoints its London branch
at 0
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx as its agent for service
of
process in relation to any proceedings before the English courts
in
connection with this Agreement;
|
|
22.5.5
|
Allied
Irish Banks, p.l.c., Sydney branch irrevocably appoints its
London branch
at St.
Helen's, 1 Undershaft, London EC3A 8AB, England
as
its agent for service of process in relation to any proceedings
before the
English courts in connection with this Agreement;
and
|
|
22.5.6
|
each
party hereto agrees that failure by a process agent to notify
its
appointee of the process will not invalidate the proceedings
concerned.
|
85
SCHEDULE
1:
The
Lenders and the Commitments
| The Lenders |
The
Commitments
|
|
DVB
Group Merchant Bank (Asia) Ltd
00
Xxxxxxxx Xxxx #00-00
Xxxxxxxxx
000000
Fax
No.: (00) 0000 0000
Attention:
Xxxxxx Xxxxxxx
|
Up
to $8,333,333.33 of the Vessel A Tranche
Up
to $13,333,333.33 of the Vessel B Tranche
Up
to $13,333,333.33 of the Vessel C Tranche
Up
to $15,000,000.00 of the Vessel D Tranche
|
|
Deutsche
Schiffsbank Aktiengesellschaft
Domshof
17
28195
Bremen
Germany
Fax
No.: (00) 000 0000 000
Attention:
Xxxx Xxxxxx
|
Up
to $1,666,666.67 of the Vessel A Tranche
Up
to $2,666,666.67 of the Vessel B Tranche
Up
to $2,666,666.67 of the Vessel C Tranche
Up
to $3,000,000.00 of the Vessel D Tranche
|
|
Skandinaviska
Enskilda Xxxxxx XX (publ)
00
Xxxxxxx Xxxxx #00-00
Xxxxxxxxx
Xxxx Xxxxx
Xxxxxxxxx
000000
Fax
No.: (00) 0000 0000
Attention:
Xxxxxxxx Xxxxx
|
Up
to $2,500,000.00 of the Vessel A Tranche
Up
to $4,000,000.00 of the Vessel B Tranche
Up
to $4,000,000.00 of the Vessel C Tranche
Up
to $4,500,000.00 of the Vessel D Tranche
|
|
Allied
Irish Banks, p.l.c.
Level
28, Governor Philip Tower
0
Xxxxxx Xxxxx
Xxxxxx
XXX 0000
Xxxxxxxxx
Fax
No.: (00) 0 0000 0000
Attention:
Xxxxxxxx Xxxxxx
|
Up
to $2,500,000.00 of the Vessel A Tranche
Up
to $4,000,000.00 of the Vessel B Tranche
Up
to $4,000,000.00 of the Vessel C Tranche
Up
to $4,500,000.00 of the Vessel D
Tranche
|
86
SCHEDULE
2:
Collateral
Owners/Vessels
|
Collateral
Owner
|
Vessel
|
Flag
|
|
|
A
|
Shinyo
Jubilee Limited
|
"Shinyo
Jubilee"
|
Hong
Kong
|
|
B
|
Shinyo
Mariner Limited
|
"Shinyo
Mariner"
|
Hong
Kong
|
|
C
|
Shinyo
Alliance Limited
|
"Shinyo
Alliance"
|
Hong
Kong
|
|
D
|
Shinyo
Sawako Limited
|
"Xxxxxx
Xxxxxx"
|
Hong
Kong
|
87
SCHEDULE
3:
Charters
|
Vessel
|
Charterer
|
Charter
|
Expiry
Date
|
Net
Hire
(in
$ per day)
|
|
|
A
|
"Shinyo
Jubilee"
|
S-Oil
Corporation
|
Tanker
Voyage Charter Party dated 31st
December 2004, as amended by an addendum no. 1 dated 11th
February 2005, an addendum no. 2 dated 8th
April 2005, an addendum no. 3 dated 1st
July 2006 and an addendum no. 4 dated 3rd
November 2006 on "Asbatankvoy" form with additional clauses.
|
30.9.2009
|
To
be calculated in accordance with the Charter itself.
|
|
B
|
"Shinyo
Mariner"
|
Dalian
Ocean Shipping Co.
|
Time
Charter dated 18th
January
2007 on "Shelltime 4" form with additional clauses as amended
by addendum
no. 1, no. 2 and no. 3.
|
30.6.2010
|
31,980
|
|
C
|
"Shinyo
Alliance"
|
Formosa
Petrochemical Corporation
|
Time
Charter dated 28th
September 2005, as amended by an addendum, on "Shelltime 4"
form with
additional clauses.
|
17.10.2010
|
29,700
|
|
D
|
"Xxxxxx
Xxxxxx"
|
Dalian
Ocean Shipping Co.
|
Time
Charter dated 18th
October 2006, as amended by addendum no. 1, no. 2 and no. 3
on "Shelltime
4" form with additional clauses.
|
01.12.2011
|
38,111
|
88
SCHEDULE
4:
Existing
Financing
|
Collateral
Owner
|
Existing
Financing
|
Existing
inter-company creditor
|
|
Shinyo
Jubilee Limited
|
Loan
Agreement dated June 2, 2006 between Shinyo Jubilee Limited,
as borrower,
and HSH Nordbank AG, Nordea Bank Danmark A/S and DVB Group
Merchant Bank
(Asia) Ltd., as lenders and Vanship Holdings Limited and Clipper
Group
Limited as guarantors, for a loan facility of up to
U.S.$15,000,000
|
Van-Clipper
Holdings Limited
|
|
Shinyo
Mariner Limited
|
Loan
Agreement dated June 2, 2006 between Shinyo Mariner Limited,
as borrower,
and HSH Nordbank AG, Nordea Bank Danmark A/S and DVB Group
Merchant Bank
(Asia) Ltd., as lenders and Vanship Holdings Limited and Clipper
Group
Limited as guarantors, for a loan facility of up to
U.S.$39,000,000
|
Van-Clipper
Holdings Limited
|
|
Shinyo
Sawako Limited
|
Loan
Agreement dated June 2, 2006 between Shinyo Sawako Limited,
as borrower,
and HSH Nordbank AG, Nordea Bank Danmark A/S and DVB Group
Merchant Bank
(Asia) Ltd., as lenders and Vanship Holdings Limited and Clipper
Group
Limited as guarantors, for a loan facility of up to
U.S.$32,000,000
|
Van-Clipper
Holdings Limited
|
|
Shinyo
Alliance Limited
|
Loan
Agreement dated July 14, 2005 between Shinyo Alliance Limited,
as
borrower, and DVB Group Merchant Bank (Asia) Ltd., as lender
and Vanship
Holdings Limited and Shinyo Xxxxxxx Limited as guarantors,
for a loan
facility of up to U.S.$32,700,000
|
Vanship
Holdings Limited
|
89
SCHEDULE
5:
Conditions Precedent and Subsequent
Part
I(a): General conditions precedent
| 1 |
Security
Parties
|
|
(a)
|
Constitutional
Documents
Copies of the constitutional documents of each Security Party
together
with such other evidence as the Agent may reasonably require
that each
Security Party is duly incorporated in its country of incorporation
and
remains in existence with power to enter into, and perform
its obligations
under, the Relevant Documents to which it is or is to become
a
party.
|
|
(b)
|
Certificates
of good standing
A
certificate of good standing in respect of each Security Party
(if such a
certificate can be obtained).
|
|
(c)
|
Board
resolutions A
copy of a resolution of the board of directors of each Security
Party:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Finance
Documents
to which it is a party and resolving that it execute those
Finance
Documents; and
|
|
(ii)
|
authorising
a specified person or persons to execute those Finance Documents
(and all
documents and notices to be signed and/or despatched under
those
documents) on its behalf.
|
|
(d)
|
Copy
passports A
copy of the passport of each person authorised by the resolutions
referred
to in paragraph (c) above.
|
|
(e)
|
Shareholder
resolutions A
copy of a resolution signed by all the holders of the issued
shares in
each Security Party, approving the terms of, and the transactions
contemplated by, the Finance Documents to which that Security
Party is a
party.
|
|
(f)
|
Officer's
certificates A
certificate of a duly authorised officer of each Security Party
certifying
that each copy document specified in this Part I of Schedule
1 is correct,
complete and in full force and effect and setting out the names
of the
directors, officers and shareholders of each Security Party
and the
proportion of shares held by each
shareholder.
|
90
|
(g)
|
Evidence
of registration Where
such registration is required or permitted under the laws of
the relevant
jurisdiction, evidence that the names of the directors, officers
and
shareholders of each Security Party are duly registered in
the companies
registry or other registry in the country of incorporation
of that
Security Party.
|
|
(h)
|
Powers
of attorney The
power of attorney of each Security Party notarially attested
and legalised
if required by the Agent (acting reasonably) under which any
documents are
to be executed or transactions undertaken by that Security
Party.
|
|
2
|
Documents
|
|
(a)
|
Relevant
and other documents Photocopies,
certified as true, accurate and complete by a director or the
secretary or
the legal advisers of the Borrower,
of:
|
|
(i)
|
the
Share Purchase Agreement;
|
|
(ii)
|
the
Charters;
|
|
(iii)
|
the
Management Agreement;
|
|
(iv)
|
the
Double Hull Loan Agreement;
|
in
each
case together with all addenda, amendments or supplements (if any).
|
(b)
|
Survey
report (If
required by the Lenders) a report by a surveyor instructed
by the Agent to
inspect the Vessels confirming that the condition of the Vessels
is in all
respects acceptable to the Lenders.
|
|
(c)
|
Mandates
Such duly signed forms of mandate, and/or other equivalent
evidence of the
opening of the Accounts, as the Agent may reasonably
require.
|
|
(d)
|
No
disputes The
written confirmation of the Borrower that there is no dispute
under any of
the Relevant Documents as between the parties to any such
document.
|
|
3
|
Legal
opinions
|
Legal
opinions of the legal advisers to the Lenders under English, Hong Kong,
Singapore and Xxxxxxxx Islands law, substantially in the form or forms
provided
to the Agent prior to signing this Agreement or confirmation satisfactory
to the
Agent that such opinions will be given.
91
|
4
|
Other
documents and evidence
|
|
(a)
|
Process
agent Evidence
that any process agent referred to in Clause 22.5 and any process
agent appointed under any other Finance Document has accepted
its
appointment.
|
|
(b)
|
Other
authorisations A
copy of any other consent, licence, approval, authorisation
which the
Agent considers to be necessary in connection with the entry
into and
performance of the transactions contemplated by any of the
Relevant
Documents or for the validity and enforceability of any of
the Relevant
Documents.
|
|
(c)
|
Financial
statements Copies
of the Original Financial Statements of
EIAC.
|
|
(d)
|
Fees
Evidence
that the fees then due from the Borrower under Clause 9 have
been paid or
will be paid by the relevant Drawdown
Date.
|
|
(e)
|
"Know
your customer" documents
Such documentation and other evidence as is reasonably requested
by the
Agent in order for the Lenders to comply with all necessary
"know your
customer" or similar identification procedures in relation
to the
transactions contemplated in the Finance
Documents.
|
|
(f)
|
Merger
Evidence that the Merger has taken place in accordance with
the terms of
the Share Purchase Agreement.
|
|
(g)
|
Coordination
agreement
The Coordination Agreement.
|
|
(h)
|
Agreed
Form Certificate
A
certificate signed by the Borrower, the Collateral Owners and
the Agent
(acting under instructions of all the Finance Parties) attaching
the forms
of the Security Documents not entered into at the same time
as this
Agreement.
|
92
Part
I(b): Vessel Tranche conditions precedent
|
1
|
Security
and related documents
|
|
(a)
|
Vessel
documents Photocopies,
certified as true, accurate and complete by a director or the
secretary or
the legal advisers of the Borrower,
of:
|
|
(i)
|
the
Technical Management Agreement in respect of the Vessel;
|
|
(ii)
|
the
Vessel's current Certificate of Financial Responsibility issued
pursuant
to the United States Oil Pollution Act
1990;
|
|
(iii)
|
the
Vessel's current SMC;
|
|
(iv)
|
the
ISM Company's current DOC;
|
|
(v)
|
the
Vessel's current ISSC;
|
|
(vi)
|
the
Vessel's current IAPPC;
|
|
(vii)
|
the
Vessel's current Tonnage
Certificate;
|
|
(viii)
|
the
Collateral Owner's current Carrier Initiative Agreement with
the United
States' Customs Service;
|
|
(ix)
|
the
documentation evidencing the Vessel's compliance with the Single
Hull
Regulations
|
in
each
case together with all addenda, amendments or supplements (if any).
|
(b)
|
Evidence
of Collateral Owner's title Certificate
of ownership and encumbrance (or equivalent) issued by the
Registrar of
Ships (or equivalent official) of the Vessel's current flag
confirming
that the Vessel is owned by the Collateral Owner and free of
registered
Encumbrances other than the mortgage(s) registered in respect
of the
Existing Indebtedness together with evidence satisfactory to
the Agent
that arrangements acceptable to the Agent are agreed in respect
of the
discharge of the Existing Security granted by or on behalf
of the
Collateral Owner simultaneously with the advance of the Vessel
Tranche in
question.
|
|
(c)
|
Evidence
of insurance Evidence
that the Vessel is insured in the manner required by the Security
Documents and that letters of undertaking will be issued in
the manner
required by the Security Documents, together with the written
approval of
the Insurances by an insurance adviser appointed (at the cost
of the
Borrower) by the Agent.
|
93
|
(d)
|
Confirmation
of class A
Certificate of Confirmation of Class for hull and machinery
confirming
that the Vessel is classed with the highest class applicable
to vessels of
her type with a member of the International Association of
Classification
Societies free of overdue recommendations affecting
class.
|
|
(e)
|
Valuation
Valuations of the Vessel addressed to the Agent from two Approved
Valuation Brokers in order to enable the Agent to assess the
Fair Market
Value of the Vessel.
|
|
(f)
|
Security
Documents The
Guarantee, the Mortgage, the Assignments, the Assignment of
Charter, the
Accounts Charge, the Collateral Guarantee, the Collateral Mortgage,
the
Collateral Assignment, the Collateral Assignment of Charter
and the
Collateral Account Charge, together with all other documents
required by
any of them, including, without limitation, all notices of
assignment
and/or charge.
|
|
(g)
|
Technical
Managers' confirmation The
written confirmation of the Technical Managers that they have
respectively
been appointed as Technical Manager and Technical Sub-Manager
pursuant to
the Technical Management Agreements for the Vessel and to which
they are a
party and that they will not, without the prior written consent
of the
Agent (such consent not to be unreasonably withheld or delayed),
further
sub-contract or sub-delegate the technical management of the
Vessel to any
third party.
|
|
2
|
Legal
opinions
|
To
the
extent not provided under Part I(a) paragraph 3 of Schedule 1, legal
opinions of
the legal advisers to the Lenders under English, Hong Kong, Singapore
and
Xxxxxxxx Islands law, substantially in the form or forms provided to
the Agent
prior to signing this Agreement or confirmation satisfactory to the Agent
that
such opinions will be given.
|
3
|
Other
documents and evidence
|
|
(a)
|
Drawdown
Notice A
duly completed Drawdown Notice.
|
|
(b)
|
Other
authorisations A
copy of any other consent, licence, approval, authorisation
which the
Agent considers to be necessary in connection with the entry
into and
performance of the transactions contemplated by any of the
Relevant
Documents or for the validity and enforceability of any of
the Relevant
Documents.
|
|
(c)
|
Cash
reserve
Evidence that the Cash Reserve Amount has been credited to
the relevant
Earnings Account.
|
|
(d)
|
Release
documentation
Copies, certified as true, accurate and complete by a director
or the
secretary or the legal advisers of the Borrower of the deed
of release and
reassignment(s) or equivalent in respect of the Existing Security
in
respect of the Vessel.
|
94
Part
II: Conditions subsequent
| 1 |
Evidence
of Collateral Owner's title Within
two (2) Business Days of the relevant Drawdown Date, a certificate
of
ownership and encumbrance (or equivalent) issued by the Registrar
of Ships
(or equivalent official) of the flag stated in Recital (A)
confirming that
(a) the Vessel is registered under that flag in the ownership
of the
Collateral Owner, (b) the Mortgage has been registered with
first priority
against the Vessel and (c) there are no further Encumbrances
registered
against the Vessel.
|
|
2
|
Letters
of undertaking Within
thirty (30) days of the relevant Drawdown Date, letters of
undertaking in
respect of the Insurances as required by the Security Documents
together
with copies of the relevant policies or cover notes or entry
certificates
duly endorsed with the interest of the Finance
Parties.
|
|
3
|
Legal
opinions Such
of the legal opinions specified in Part I of this Schedule
5 as have not
already been provided to the Agent.
|
|
4
|
Companies
Act registrations
Evidence that the prescribed particulars of any Security Documents
received by the Agent pursuant to Part I of this Schedule 5
have been
delivered to the Registrar of Companies of Hong Kong within
statutory time
limits.
|
95
SCHEDULE
6:
Vessel
A Tranche repayment schedule
|
Repayment
instalment
|
Amount
in $
|
|
1.
|
$1,000,000
|
|
2.
|
$1,000,000
|
|
3.
|
$1,000,000
|
|
4.
|
$1,000,000
|
|
5.
|
$1,000,000
|
|
6.
|
$10,000,000
|
96
Vessel
B Tranche repayment schedule
|
Repayment
instalment
|
Amount
in $
|
|
1.
|
$1,500,000
|
|
2.
|
$1,500,000
|
|
3.
|
$1,500,000
|
|
4.
|
$1,500,000
|
|
5.
|
$1,500,000
|
|
6.
|
$1,500,000
|
|
7.
|
$1,500,000
|
|
8.
|
$1,500,000
|
|
9.
|
$1,500,000
|
|
10.
|
$10,500,000
|
97
Vessel
C Tranche repayment schedule
|
Repayment
instalment
|
Amount
in $
|
|
1.
|
$1,500,000
|
|
2.
|
$1,500,000
|
|
3.
|
$1,500,000
|
|
4.
|
$1,500,000
|
|
5.
|
$1,500,000
|
|
6.
|
$1,500,000
|
|
7.
|
$1,500,000
|
|
8.
|
$1,500,000
|
|
9.
|
$1,500,000
|
|
10.
|
$10,500,000
|
98
Vessel
D Tranche repayment schedule
|
Repayment
instalment
|
Amount
in $
|
|
1.
|
$1,500,000
|
|
2.
|
$1,500,000
|
|
3.
|
$1,500,000
|
|
4.
|
$1,500,000
|
|
5.
|
$1,500,000
|
|
6.
|
$1,500,000
|
|
7.
|
$1,500,000
|
|
8.
|
$1,500,000
|
|
9.
|
$1,500,000
|
|
10.
|
$13,500,000
|
99
SCHEDULE
7:
Form of Drawdown Notice
| To: |
DVB
Group Merchant Bank (Asia) Ltd
00
Xxxxxxxx Xxxx
#00-00
Xxxxxxxxx
000000
|
From: Energy
Infrastructure Merger Corporation
[Date]
Dear
Sirs
Drawdown
Notice
We
refer
to the Loan Agreement
dated
2008 made between, amongst others, ourselves and yourselves (the "Agreement").
Words
and
phrases defined in the Agreement have the same meaning when used in this
Drawdown Notice.
Pursuant
to Clause 4.2 of the Agreement, we irrevocably request that you advance the
Vessel [A/B/C/D] Tranche in the sum of [
] [and
[ ] respectively] to
us on
200 , which is a Business Day, by paying
the amount of the Drawing to
[
] in respect of the Vessel named
[
] [and [
] in respect of the Vessel named
[ ]].
We
warrant that the representations and warranties contained in Clause 11.1
of the
Agreement are true and correct at the date of this Drawdown Notice and
will be
true and correct on
2008, that no Default has occurred and is continuing, and that no Default
will
result from the advance of the Drawing requested in this Drawdown
Notice.
[We
select the period of [ ] months as the
first Interest Period.]
Yours
faithfully
.................................
For
and
on behalf of
100
SCHEDULE
8: Form of Transfer Certificate
| To: |
DVB
Group Merchant Bank (Asia) Ltd
00
Xxxxxxxx Xxxx
#00-00
Xxxxxxxxx
000000
|
TRANSFER
CERTIFICATE
This
transfer certificate relates to a secured loan facility agreement (as
from time
to time amended, varied, supplemented or novated the "Loan
Agreement")
dated
2008, on the terms and subject to the conditions of which a secured loan
facility of up to $90,000,000 was made available to Energy
Infrastructure Merger Corporation (t.b.n. Van Asia Tankers
Corporation),
by a
syndicate of banks on whose behalf you act as agent and security
agent.
|
1
|
Terms
defined in the Loan Agreement shall, unless otherwise expressly
indicated,
have the same meaning when used in this certificate. The
terms
"Transferor"
and "Transferee"
are defined in the schedule to this
certificate.
|
|
2
|
The
Transferor:
|
|
2.1
|
confirms
that the details in the Schedule under the heading "Transferor's
Commitments and/or Contribution"
accurately summarise its Commitments/Contribution; and
|
|
2.2
|
requests
the Transferee to accept by way of novation the transfer
to the Transferee
of the amount of the Transferor’s Commitments/Contribution specified in
the Schedule by counter-signing and delivering this certificate
to the
Agent at its address for communications specified in the
Loan
Agreement.
|
|
3
|
The
Transferee requests the Agent to accept this certificate
as being
delivered to the Agent pursuant to and for the purposes of
clause
14.4
of
the Loan Agreement so as to take effect in accordance with
the terms of
that clause on the Transfer Date specified in the
Schedule.
|
|
4
|
The
Agent confirms its acceptance of this certificate for the
purposes of
clause 14.4
of
the Loan Agreement.
|
101
|
5
|
The
Transferee confirms that:
|
|
5.1
|
it
has received a copy of the Loan Agreement together with all
other
information which it has required in connection with this
transaction;
|
|
5.2
|
it
has not relied and will not in the future rely on the Transferor
or any
other party to the Loan Agreement to check or enquire on
its behalf into
the legality, validity, effectiveness, adequacy, accuracy
or completeness
of any such information; and
|
|
5.3
|
it
has not relied and will not in the future rely on the Transferor
or any
other party to the Loan Agreement to keep under review on
its behalf the
financial condition, creditworthiness, condition, affairs,
status or
nature of any Security Party.
|
|
6
|
Execution
of this certificate by the Transferee constitutes its representation
and
warranty to the Transferor and to all other parties to the
Loan Agreement
that it has the power to become a party to the Loan Agreement
as a Lender
on the terms of the Loan Agreement and has taken all steps
to authorise
execution and delivery of this certificate.
|
|
7
|
The
Transferee undertakes with the Transferor and each of the
other parties to
the Loan Agreement that it will perform in accordance with
their terms all
those obligations which by the terms of the Loan Agreement
will be assumed
by it after delivery of this certificate to the Agent and
the satisfaction
of any conditions subject to which this certificate is expressed
to take
effect.
|
|
8
|
The
Transferor makes no representation or warranty and assumes
no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any
document
relating to any Finance Document, and assumes no responsibility
for the
financial condition of any Finance Party or for the performance
and
observance by any Security Party of any of its obligations
under any
Finance Document or any document relating to any Finance
Document and any
conditions and warranties implied by law are expressly
excluded.
|
|
9
|
The
Transferee acknowledges that nothing in this certificate
or in the Loan
Agreement shall oblige the Transferor to:
|
|
9.1
|
accept
a re-transfer from the Transferee of the whole or any part
of the rights,
benefits and/or obligations transferred pursuant to this
certificate; or
|
102
|
9.2
|
support
any losses directly or indirectly sustained or incurred by
the Transferee
for any reason including, without limitation, the non-performance
by any
party to any Finance Document of any obligations under any
Finance
Document.
|
|
10
|
The
address and fax number of the Transferee for the purposes
of clause
18
of
the Loan Agreement are set out in the
Schedule.
|
|
11
|
This
certificate may be executed in any number of counterparts
each of which
shall be original but which shall together constitute the
same
instrument.
|
|
12
|
This
certificate shall be governed by and interpreted in accordance
with
English law.
|
THE SCHEDULE
| 1 |
Transferor:
|
| 2 |
Transferee:
|
| 3 |
Transfer
Date
(not earlier that the fifth Business Day after the date of
delivery of the
Transfer Certificate to the
Agent):
|
| 4 |
Transferor’s
Commitments and/or Contribution:
|
|
Current
Commitment
|
$[ ]
Vessel A Tranche
|
|
|
$[ ] Vessel
B Tranche
|
||
|
$[ ] Vessel
C Tranche
|
||
|
$[ ]
Vessel D Tranche
|
||
|
Current
Contribution
|
$[ ]
Vessel A Tranche
|
|
|
$[ ]
Vessel B Tranche
|
||
|
$[ ]
Vessel C Tranche
|
||
|
$[ ]
Vessel D Tranche
|
103
5 Amount
transferred:
6 Transferee’s
address and fax number for the purposes of clause 18
of the Loan Agreement:
|
[name
of Transferor]
|
[name
of Transferee]
|
|
By:
|
By:
|
|
Date:
|
Date:
|
DVB
Group Merchant Bank (Asia) Ltd
as
Agent
for
and
on behalf of itself, the Borrower and the other Finance Parties
By:
Date:
104
SCHEDULE
9: Form of Compliance Certificate
| To: |
DVB
Group Merchant Bank (Asia) Ltd
00
Xxxxxxxx Xxxx
#00-00
Xxxxxxxxx
000000
|
From: Energy
Infrastructure Merger Corporation
Dated:
Dear
Sirs
Energy
Infrastructure Merger Corporation
- US$90,000,000 Secured Loan Agreement dated [ ] 2008 (the
"Agreement")
We
refer
to the Agreement. This is a Compliance Certificate. Terms defined in
the
Agreement have the same meaning when used in this Compliance Certificate
unless
given a different meaning in this Compliance Certificate.
We
confirm that:
1. Our
minimum available cash amounts to $[
].
2. Our
Value
Adjusted Net Worth is $[ ].
3. Our
Value
Adjusted Leverage is $[ ]%.
4. Our
Interest Coverage ratio is [ ]:1.
[We
confirm that no Default has occurred that is continuing.]*
|
Signed:
|
|
|
||
|
Director
|
Director
|
|||
|
of
|
of
|
|||
| * |
If
this statement cannot be made, the certificate should identify
any Default
that is continuing and the steps, if any, being taken to
remedy
it.]
|
105
IN
WITNESS
of which
the parties to this Agreement have executed this Agreement the day and
year
first before written.
|
SIGNED
by
|
)
|
|
|
as
duly authorised
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
ENERGY
INFRASTRUCTURE MERGER
|
)
|
|
|
CORPORATION
|
)
|
|
|
in
the presence of:
|
)
|
|
|
|
||
|
|
||
|
SIGNED
by
|
)
|
|
|
as
duly authorised
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
DVB
GROUP MERCHANT BANK
|
)
|
|
|
(ASIA)
LTD
(as a Lender)
|
)
|
|
|
in
the presence of:
|
)
|
|
|
|
||
|
|
||
|
SIGNED
by
|
)
|
|
|
as
duly authorised
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
DEUTSCHE
SCHIFFSBANK
|
)
|
|
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AKTIENGESELLSCHAFT
(as a Lender)
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)
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in
the presence of:
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)
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SIGNED
by
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)
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as
duly authorised
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)
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for
and on behalf of
|
)
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SKANDINAVISKA
ENSKILDA
|
)
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XXXXXX
XX (publ)
(as a Lender)
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)
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in
the presence of:
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)
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||
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SIGNED
by
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)
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as
duly authorised
|
)
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for
and on behalf of
|
)
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ALLIED
IRISH BANKS, p.l.c.
(as a Lender)
|
)
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in
the presence of:
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)
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106
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SIGNED
by
|
)
|
|
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as
duly authorised
|
)
|
|
|
for
and on behalf of
|
)
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DVB
GROUP MERCHANT BANK
|
)
|
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(ASIA)
LTD
(as the Agent)
|
)
|
|
|
in
the presence of:
|
)
|
|
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SIGNED
by
|
)
|
|
|
as
duly authorised
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
DVB
BANK AG (as
a Swap Provider)
|
)
|
|
|
in
the presence of:
|
)
|
|
|
SIGNED
by
|
)
|
|
|
as
duly authorised
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
DVB
GROUP MERCHANT BANK
|
)
|
|
|
(ASIA)
LTD (as
the Security Agent)
|
)
|
|
|
in
the presence of:
|
)
|
107
