LOAN AGREEMENT for a Loan of up to US$47,000,000 to IASON OWNING COMPANY LIMITED provided by EFG EUROBANK ERGASIAS S.A.
Exhibit
4.11
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Private
& Confidential
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for
a Loan of up to
US$47,000,000
to
IASON
OWNING COMPANY LIMITED
provided
by
EFG
EUROBANK ERGASIAS S.A.
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Contents
| Clause | Page | |
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| 1 | Purpose and definitions |
1
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2
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The
Commitment and the Loan
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8
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3
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Interest
and Interest Periods
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9
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4
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Repayment
and prepayment
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11
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5
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Fees,
commitment commission and expenses
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12
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6
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Payments
and taxes; accounts and calculations
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13
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7
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Representations
and warranties
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14
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8
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Undertakings
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18
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9
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Conditions
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24
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10
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Events
of Default
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24
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11
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Indemnities
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28
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12
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Unlawfulness
and increased costs
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29
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13
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Security
and set-off
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30
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14
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Accounts
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31
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15
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Assignment,
transfer and lending office
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33
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16
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Notices
and other matters
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34
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17
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Governing
law and jurisdiction
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35
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Schedule
1 Form of Drawdown Notice
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36
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Schedule
2 Documents and evidence required as conditions precedent to
the Loan being made
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37
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Schedule
3 Form of Corporate Guarantee
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41
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Schedule
4 Form of Mortgage
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42
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Schedule
5 Form of Deed of Covenant
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43
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Schedule
6 Form of Manager’s Undertaking
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44
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Schedule
7 Form of Master Swap Agreement
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45
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Schedule
8 Form of Master Agreement Security Deed
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46
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THIS AGREEMENT is dated 16
November 2007 and made BETWEEN:
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(1)
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IASON OWNING COMPANY LIMITED
as Borrower; and
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(2)
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EFG EUROBANK ERGASIAS
S.A. as Bank.
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IT IS AGREED as
follows:
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1.1
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Purpose
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This
Agreement sets out the terms and conditions upon and subject to which the Bank
agrees to make available to the Borrower a loan of up to Forty seven million
Dollars ($47,000,000) to be used for the purpose of financing part of the cost
of the purchase of the Ship.
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1.2
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Definitions
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In this
Agreement, unless the context otherwise requires:
“Accounts” means, together, the
Earnings Account and the Retention Account and “Account” means either of
them;
“Accounts Pledges” means,
together, the Earnings Account Pledge and the Retention Account Pledge and
“Account Pledge” means
either of them;
“Applicable Accounting
Principles” means the most recent and up-to-date US GAAP at any relevant
time;
“Assignee” has the meaning
ascribed thereto in clause 15.3;
“Balloon Instalment” has the
meaning ascribed thereto in clause 4.1;
“Bank” means EFG Eurobank
Ergasias S.A. whose registered office is at 0 Xxxxxxx Xxxxxx, Xxxxxx 000 00,
Xxxxxx acting (a) for the purposes of this Agreement through its office at 83
Akti Miaouli & Flessa Street, Xxxxxxx 000 00, Xxxxxx (or of such other
address as may last have been notified to the Borrower pursuant to
clause 15.6) and (b) for the purposes of the Master Swap Agreement through
its head office at 0 Xxxxxxx Xxxxxx, Xxxxxx 105 57, Hellenic Republic and/or its
branch at 00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX, Xxxxxxx and includes its successors
in title, Assignees or Transferees;
“Banking Day” means 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 business
in London, Piraeus and New York City (or any other relevant place of payment
under clause 6);
“Borrowed Money” means
Indebtedness incurred in respect of (i) money borrowed or raised and debit
balances at banks, (ii) any bond, note, loan stock, debenture or similar debt
instrument, (iii) acceptance or documentary credit facilities, (iv) receivables
sold or discounted (otherwise than on a non-recourse basis), (v) deferred
payments for assets or services acquired, (vi) leases and hire purchase
contracts, (vii) swaps, forward exchange contracts, futures and other
derivatives, (viii) any other transaction (including without limitation forward
sale or purchase agreements) having the commercial effect of a borrowing or
raising of money or of any of (ii) to (vii) above and (ix) guarantees in respect
of Indebtedness of any person falling within any of (i) to (vii)
above;
“Borrower” means Iason Owning
Company Limited of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Republic of the Xxxxxxxx Xxxxxxx XX00000 and includes its successors in
title;
1
“Borrower's Security Documents”
means, at any relevant time, such of the Security Documents as shall have been
executed by the Borrower at such time;
“Charter” means any time or
voyage charterparty for a term which exceeds or by virtue of any optional
extensions therein contained might exceed twelve (12) months’ duration which may
be entered into by the Borrower with a Charterer during the Security
Period;
“Charter Assignment” means an
assignment of any Charter executed or (as the context may require) to be
executed by the Borrower in favour of the Bank in such form as the Bank may
require in its sole discretion if a Charter is entered into by the Borrower with
a Charterer;
“Charterer” means such person
as shall be acceptable to the Bank which shall enter into a charterparty in
respect of the Ship with the Borrower;
“Classification” means the
classification +A1, Bulk Carrier, +AMS, +ACCU, SH, HCS with the Classification
Society or such other classification as the Bank shall, at the request of the
Borrower, have agreed in writing shall be treated as the Classification for the
purposes of the Security Documents;
“Classification Society” means
American Bureau of Shipping or such other classification society which the Bank
shall, at the request of the Borrower, have agreed in writing shall be treated
as the Classification Society for the purposes of the Security
Documents;
“Code” means the International
Management Code for the Safe Operation of Ships and for Pollution Prevention
constituted pursuant to Resolution A.741(18) of the International Maritime
Organization and incorporated into the International Convention for the Safety
of Life at Sea 1974 (as amended) and includes any amendments or extensions
thereto and any regulation issued pursuant thereto;
“Commitment” means the amount
which the Bank has agreed to lend to the Borrower under clause 2.1 as
reduced by any relevant term of this Agreement;
“Compulsory Acquisition” means
requisition for title or other compulsory acquisition, requisition,
appropriation, expropriation, deprivation, forfeiture or confiscation for any
reason of the Ship by any Government Entity or other competent authority,
whether de jure or de facto, but shall exclude requisition for use or hire not
involving requisition of title;
“Confirmation” shall have, in
relation to any continuing Designated Transaction, the meaning ascribed to it in
the Master Swap Agreement;
“Contract” means the memorandum
of agreement dated 13 July 2007, made between (inter alios) the Seller and the
Corporate Guarantor, as amended and supplemented by an Addendum No. 1 thereto
dated 17 July 2007 and made between the Seller, the Corporate Guarantor and the
Borrower (pursuant to which the Corporate Guarantor has nominated the Borrower
as buyer) and by an Addendum No. 2 thereto dated 15 October 2007 and as may be
further amended and supplemented from time to time, relating to the sale by the
Seller, and the purchase by the Borrower, of the Ship;
“Contract Price” means the
price payable by the Borrower to the Seller for the Ship in accordance with the
Contract, being the purchase sum of Sixty seven million one hundred and seventy
five thousand Dollars ($67,175,000) or such other sum as is determined in
accordance with the terms and conditions of the Contract to be the purchase
price for the Ship thereunder;
“Corporate Guarantee” means the
corporate guarantee executed or (as the context may require) to be executed by
the Corporate Guarantor in favour of the Bank in the form or substantially the
form set out in schedule 3;
“Corporate Guarantor” means
DryShips Inc. of Trust Company Complex, Ajeltake Island, X.X.Xxx 1405, Majuro,
Xxxxxxxx Xxxxxxx XX00000, and includes its successors in title;
2
“Deed of Covenant” means the
deed of covenant collateral to the Mortgage executed or (as the context may
require) to be executed by the Borrower in favour of the Bank in the form or
substantially the form set out in schedule 5;
“Default” means any Event of
Default or any event or circumstance which with the giving of notice or lapse of
time or the satisfaction of any other condition (or any combination thereof)
would constitute an Event of Default;
“Delivery” means the delivery
of the Ship by the Seller to the Borrower, and the acceptance of the Ship by the
Borrower pursuant to the Contract;
“Delivery Date” means the date
upon which Delivery occurs;
“Designated Transaction” means
any Transaction which is entered into by the Borrower pursuant to the Master
Swap Agreement with the Bank as contemplated by clause 2.7;
“DOC” means a document of
compliance issued to an Operator in accordance with rule 13 of the
Code;
“Dollars” and “$” mean the lawful currency of
the United States of America and in respect of all payments to be made under any
of the Security Documents mean funds which are for same day settlement in the
New York Clearing House Interbank Payments System (or such other U.S. dollar
funds as may at the relevant time be customary for the settlement of
international banking transactions denominated in U.S. dollars);
“Drawdown Date” means the date,
being a Banking Day falling not later than the Termination Date, on which the
Loan is, or is to be, drawn down;
“Drawdown Notice” means a
notice substantially in the form of schedule 1;
“Early Termination Date” shall
have, in relation to any continuing Designated Transaction, the meaning ascribed
to it in the Master Swap Agreement;
“Earnings” means all money
whatsoever from time to time due or payable to the Borrower during the Security
Period (as such term is defined in the Deed of Covenant) arising out of the use
or operation of the Ship including (but without limiting the generality of the
foregoing) all freight, hire and passage moneys, income arising out of pooling
arrangements, compensation payable to the Borrower in the event of requisition
of the Ship for hire, remuneration for salvage or towage services, demurrage and
detention moneys and damages for breach (or payment for variation or
termination) of any charterparty or other contract for the employment of the
Ship and any sums recoverable under any loss of earnings insurance;
“Earnings Account” means an
interest bearing Dollar account of the Borrower opened or (as the context may
require) to be opened by the Borrower with the Bank and includes any
sub-accounts thereof and any other account designated in writing by the Bank to
be an “Earnings Account” for the purposes of this Agreement;
“Earnings Account Pledge” means
the pledge executed or (as the context may require) to be executed by the
Borrower in favour of the Bank, in respect of the Earnings Account, in such form
as the Bank may require in its sole discretion;
“Encumbrance” means any
mortgage, charge (whether fixed or floating), pledge, lien, hypothecation,
assignment, trust arrangement or security interest or other encumbrance of any
kind securing any obligation of any person or any type of preferential
arrangement (including without limitation title transfer and/or retention
arrangements having a similar effect);
“Environmental Affiliate” means
any agent or employee of the Borrower or any other Relevant Party or any person
having a contractual relationship with the Borrower or any other Relevant Party
in connection with any Relevant Ship or its operation or the carriage of cargo
and/or passengers thereon and/or the provision of goods and/or services on or
from such Relevant Ship;
3
“Environmental Approval” means
any consent, authorisation, licence or approval of any governmental or public
body or authorities or courts applicable to any Relevant Ship or its operation
or the carriage of cargo and/or passengers thereon and/or the provision of goods
and/or services on or from such Relevant Ship required under any Environmental
Law;
“Environmental Claim” means any
and all enforcement, clean-up, removal or other governmental or regulatory
actions or orders instituted or completed pursuant to any Environmental Law or
any Environmental Approval together with claims made by any third party relating
to damage, contribution, loss or injury, resulting from any actual or threatened
emission, spill, release or discharge of a Material of Environmental Concern
from any Relevant Ship;
“Environmental Laws” means all
national, international and state laws, rules, regulations, treaties and
conventions applicable to any Relevant Ship pertaining to the pollution or
protection of human health or the environment including, without limitation, the
carriage of Materials of Environmental Concern and actual or threatened
emissions, spills, releases or discharges of Materials of Environmental
Concern;
“Event of Default” means any of
the events or circumstances described in clause 10.1;
“Flag State” means the Malta or
such other state or territory designated in writing by the Bank, at the request
of the Borrower, as being the “Flag State” of the Ship for
the purposes of the Security Documents;
“Government Entity” means and
includes (whether having a distinct legal personality or not) any national or
local government authority, board, commission, department, division, organ,
instrumentality, court or agency and any association, organisation or
institution of which any of the foregoing is a member or to whose jurisdiction
any of the foregoing is subject or in whose activities any of the foregoing is a
participant;
“Group” means, together, the
Corporate Guarantor and its Subsidiaries from time to time and “member of the Group” shall be constructed
accordingly;
“Indebtedness” means any
obligation for the payment or repayment of money, whether as principal or as
surety and whether present or future, actual or contingent;
“Interest Payment Date” means
the last day of an Interest Period;
“Interest Period” means each
period for the calculation of interest in respect of the Loan ascertained in
accordance with clauses 3.2 and 3.3;
“ISPS Code” means the
International Ship and Port Facility Security Code constituted pursuant to
resolution A.924(22) of the International Maritime Organisation now set out in
Chapter XI-2 of the International Convention for the Safety of Life at Sea
(SOLAS) 1974 (as amended) and the mandatory ISPS Code as adopted by a Diplomatic
Conference of the International Maritime Organisation on Maritime Security in
December 2002 and includes any amendments or extensions to it and any regulation
issued pursuant to it;
“ISSC” means an International
Ship Security Certificate issued in respect of the Ship pursuant to the ISPS
Code;
“LIBOR” means, in relation to a
particular period, the rate determined by the Bank to be that at which deposits
in Dollars and in an amount comparable with the amount in relation to which
LIBOR is to be determined and for a period equal to the relevant period were
being offered by the Bank to prime banks in the London Interbank Market at or
about 11:00 a.m. on the second Banking Day before the first day of such
period;
4
“Loan” means the principal
amount borrowed by the Borrower on the Drawdown Date or (as the context may
require) the principal amount owing to the Bank under this Agreement at any
relevant time;
“Management Agreement” means
the agreement dated 15 November 2007 made between the Borrower and the Manager
in respect of the Ship or any other agreement previously approved in writing by
the Bank between the Borrower and the Manager providing for the Manager to
manage the Ship;
“Manager” means Cardiff Marine
Inc. of 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx or any other person appointed by the
Borrower, with the prior written consent of the Bank, as the manager of the
Ship, and includes its successors in title;
“Manager’s Undertaking” means
the first priority manager’s undertaking and assignment executed or (as the
context may require) to be executed by the Manager in favour of the Bank in the
form or substantially the form set out in schedule 6;
“Margin”
means zero point eight five per cent (0.85%) per
annum;
“Master Agreement Security
Deed” means a security deed executed or (as the context may require) to
be executed by the Borrower in favour of the Bank in relation to certain of the
rights of the Borrower under the Master Swap Agreement in the form or
substantially the form set out in schedule 8;
“Master Swap Agreement” means
the agreement made or (as the context may require) to be made between the Bank
and the Borrower comprising a 1992 ISDA Master Agreement
(Multicurrency-Crossborder) (including the schedule thereto) in the form or
substantially the form set out in schedule 7 and includes any Designated Transactions from time to time entered into and any
Confirmations (as defined therein) from time to time exchanged thereunder and
governed thereby;
“Material of Environmental
Concern” means and includes pollutants, contaminants, toxic substances,
oil as defined in the United States Oil Pollution Act of 1990 and all hazardous
substances as defined in the United States Comprehensive Environmental Response,
Compensation and Liability Xxx 0000;
“month” means a period
beginning in one calendar month and ending in the next calendar month on the day
numerically corresponding to the day of the calendar month on which it started,
provided that (i) if the period started on the last Banking Day in a calendar
month or if there is no such numerically corresponding day, it shall end on the
last Banking Day in such next calendar month and (ii) if such numerically
corresponding day is not a Banking Day, the period shall end on the next
following Banking Day in the same calendar month but if there is no such Banking
Day it shall end on the preceding Banking Day and “months” and “monthly” shall be construed
accordingly;
“Mortgage” means the first
priority statutory Maltese mortgage of the Ship executed or (as the context may
require) to be executed by the Borrower in favour of the Bank in the form or
substantially the form set out in schedule 4;
“Operator” means any person who
is from time to time during the Security Period (as defined in the Deed of
Covenant) concerned in the operation of the Ship and falls within the definition
of “Company” set out in rule 1.1.2 of the Code;
“Permitted Encumbrance” means
any Encumbrance in favour of the Bank created pursuant to the Security Documents
and Permitted Liens;
“Permitted Liens” means any
lien on the Ship for master's, officer's or crew's wages outstanding in the
ordinary course of trading, any lien for salvage and any ship repairer's or
outfitter's possessory lien for a sum not (except with the prior written consent
of the Bank) exceeding the Casualty Amount (as defined in the Ship Security
Documents);
5
“Registry” means the offices of
the Maltese Ship Registry in Valletta, Malta or such other registrar,
commissioner or representative of the Flag State who is duly authorised and
empowered to register the Ship, the Borrower's title to the Ship and the
Mortgage under the laws and flag of the Flag State through the
Registry;
“Related Company” of a person
means any Subsidiary of such person, any company or other entity of which such
person is a Subsidiary and any Subsidiary of any such company or
entity;
“Relevant Jurisdiction” means
any jurisdiction in which or where any Security Party is incorporated, resident,
domiciled, has a permanent establishment, carries on, or has a place of business
or is otherwise effectively connected;
“Relevant Party” means the
Borrower, any other Security Party and any other member of the
Group;
“Relevant Ship” means the Ship
and any other vessel owned, operated, managed or crewed by any Relevant
Party;
“Repayment Dates” means,
subject to clause 6.3, each of the dates falling at three (3) monthly
intervals after the Drawdown Date up to and including the date falling ninety
six (96) months after the Drawdown Date;
“Retention Account” means a
Dollar account of the Borrower opened or (as the context may require) to be
opened by the Borrower with the Bank and includes any sub-accounts thereof and
any other account designated in writing by the Bank to be a Retention Account
for the purposes of this Agreement;
“Retention Account Pledge”
means a first priority pledge of the Retention Account executed or (as the
context may require) to be executed by the Borrower in favour of the Bank, in
such form as the Bank may in it sole discretion require;
“Retention Amount” means, in
relation to any Retention Date, such sum as shall be the aggregate
of:
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(a)
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one-third
(1/3rd)
of the repayment instalment falling due for payment pursuant to
clause 4.1 (as the same may have been reduced by any prepayment) on
the next Repayment Date after the relevant Retention Date;
and
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(b)
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the
applicable fraction (as hereinafter defined) of the aggregate amount of
interest falling due for payment in respect of each part of the Loan
during and at the end of each Interest Period current at the relevant
Retention Date and, for this purpose, the expression “applicable fraction” in
relation to each Interest Period shall mean a fraction having a numerator
of one and a denominator equal to the number of Retention Dates falling
within the relevant Interest
Period;
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“Retention Dates” means the
date falling thirty (30) days after the Drawdown Date and each of the dates
falling at monthly intervals after such date and prior to the final Repayment
Date;
“Security Documents” means this
Agreement, the Corporate Guarantee, the Mortgage, the Deed of Covenant, the
Manager’s Undertaking, the Account Pledges, the Master Swap Agreement, the
Master Agreement Security Deed, any Charter Assignment and any other documents
as may have been or shall from time to time after the date of this Agreement be
executed to secure all or any part of the Loan, interest thereon and other
moneys from time to time owing by the Borrower or any other Security Party
pursuant to this Agreement or the Master Swap Agreement or any other Security
Documents (whether or not any such document also secures moneys from time to
time owing pursuant to any other document or agreement);
“Security Party” means the
Borrower, the Corporate Guarantor, the Manager or any other person who may at
any time be a party to any of the Security Documents (other than the
Bank);
6
“Security Requirement” means
the amount in Dollars (as certified by the Bank whose certificate shall, in the
absence of manifest error, be conclusive and binding on the Borrower and the
Bank) which is, at any relevant time, one hundred and thirty per cent (130%) of
the aggregate of (a) the Loan and (b) the Swap Exposure at such
time;
“Security Value” means the
amount in Dollars (as certified by the Bank whose certificate shall, in the
absence of manifest error, be conclusive and binding on the Borrower and the
Bank) which is, at any relevant time, the aggregate of (a) the market value of
the Ship as most recently determined in accordance with clause 8.3.2 and
(b) the market value of any additional security for the time being actually
provided to the Bank pursuant to clause 8.3;
“Seller” means Immortality
Shipping Co. Ltd. of Monrovia, Liberia and includes its successors in
title;
“Ship” means the 74.205 dwt,
2002-built bulk carrier owned on the date of this Agreement by the Seller and
registered under the laws and flag of The Commonwealth of the Bahamas under IMO
No. 9214123 and to be registered on the Delivery Date in the ownership of the
Borrower through the Registry under the laws and flag of the Flag State with the
name Oregon;
“Ship Security Documents” means
the Mortgage, the Deed of Covenant, any Charter Assignment and the Manager’s
Undertaking;
“SMC” means a safety management
certificate issued in respect of the Ship in accordance with rule 13 of the
Code;
“Subsidiary” of a person means
any company or entity directly or indirectly controlled by such person, and for
this purpose “control”
means either the ownership of more than fifty per cent (50%) of the voting share
capital (or equivalent rights of ownership) of such company or entity or the
power to direct its policies and management, whether by contract or
otherwise;
“Swap Exposure” means, as at
any relevant time, the amount certified by the Bank to be the aggregate net
amount in Dollars which would be payable by the Borrower to the Bank under (and
calculated in accordance with) section 6(e) (Payments on Early Termination) of
the Master Swap Agreement if an Early Termination Date had occurred at the
relevant time in relation to all continuing Designated
Transactions;
“Taxes” includes all present
and future taxes, levies, imposts, duties, fees or charges of whatever nature
together with interest thereon and penalties in respect thereof and “Taxation” shall be construed
accordingly;
“Termination Date” means 25
February 2008 or such later date as the Bank may in its absolute discretion
agree in writing;
“Total Loss”
means:
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(a)
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actual,
constructive, compromised or arranged total loss of the Ship;
or
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(b)
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the
Compulsory Acquisition of the Ship;
or
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(c)
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the
hijacking, theft, condemnation, capture, seizure, arrest, detention or
confiscation of the Ship (other than where the same amounts to the
Compulsory Acquisition of the Ship) by any Government Entity, or by
persons acting or purporting to act on behalf of any Government Entity,
unless the Ship be released and restored to the Borrower from such
hijacking, theft, condemnation, capture, seizure, arrest, detention or
confiscation within thirty (30) days after the occurrence
thereof;
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“Transaction” has the meaning
ascribed thereto in the Master Swap Agreement;
7
“Transferee” has the meaning
ascribed thereto in clause 15.4; and
“Underlying Documents” means,
together, the Contract and the Management Agreement.
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1.3
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Headings
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Clause headings
and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement.
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1.4
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Construction
of certain terms
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In this
Agreement, unless the context otherwise requires:
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1.4.1
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references
to clauses and schedules are to be construed as references to
clauses of, and schedules to, this Agreement and references to
this Agreement include its
schedules;
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1.4.2
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references
to (or to any specified provision of) this Agreement or any other document
shall be construed as references to this Agreement, that provision or that
document as in force for the time being and as amended in accordance with
terms thereof, or, as the case may be, with the agreement of the relevant
parties;
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1.4.3
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references
to a “regulation”
include any present or future regulation, rule, directive, requirement,
request or guideline (whether or not having the force of law) of any
agency, authority, central bank or government department or any
self-regulatory or other national or supra-national
authority;
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1.4.4
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words
importing the plural shall include the singular and vice
versa;
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1.4.5
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references
to a time of day are to Greek time;
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1.4.6
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references
to a person shall be construed as references to an individual, firm,
company, corporation, unincorporated body of persons or any Government
Entity;
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1.4.7
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references
to a “guarantee”
include references to an indemnity or other assurance against financial
loss including, without limitation, an obligation to purchase assets or
services as a consequence of a default by any other person to pay any
Indebtedness and “guaranteed” shall be
construed accordingly; and
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1.4.8
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references
to any enactment shall be deemed to include references to such enactment
as re-enacted, amended or extended.
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2
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The
Commitment and the Loan
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2.1
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Agreement
to lend
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The
Bank, relying upon each of the representations and warranties in clause 7,
agrees to lend to the Borrower, upon and subject to the terms of this Agreement,
the principal sum of up to Forty seven million Dollars
($47,000,000).
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2.2
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Drawdown
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Subject
to the terms and conditions of this Agreement, the Loan shall be advanced in
full in one amount on the Drawdown Date following receipt by the Bank from the
Borrower of a Drawdown Notice not later than 10:00 a.m. one (1) Banking Day
before the proposed Drawdown Date. A Drawdown Notice shall be
effective on actual receipt by the Bank and, once given, shall, subject as
provided in clause 3.6.1, be irrevocable.
8
|
2.3
|
Amount
|
The
principal amount specified in the Drawdown Notice for borrowing on the Drawdown
Date shall, subject to the terms and conditions of this Agreement, not exceed
the lower of (a) Forty seven million Dollars ($47,000,000) and (b) the amount in
Dollars which is equal to seventy per cent (70%) of the market value of the Ship
as shown in the valuation obtained pursuant to Schedule 2, Part 2.
|
2.4
|
Availability
|
Upon
receipt of a Drawdown Notice complying with the terms of this Agreement the Bank
shall, subject to the provisions of clause 9, on the Drawdown Date make the
Loan available to the Borrower in accordance with
clause 6.2. The Borrower acknowledges that payment of the Loan
or part thereof to the Seller in accordance with clause 6.2 shall satisfy the
obligation of the Bank to lend the Commitment to the Borrower under this
Agreement.
|
2.5
|
Termination
of Commitment
|
Any
undrawn amount of the Commitment by the Termination Date shall thereupon be
automatically cancelled.
|
2.6
|
Application
of proceeds
|
Without
prejudice to the Borrower's obligations under clause 8.1.3, the Bank shall
have no responsibility for the application of the proceeds of the Loan or any
part thereof by the Borrower.
|
2.7
|
Derivative
transactions
|
|
2.7.1
|
If,
at any time during the Security Period (as defined in the Ship Security
Documents), the Borrower wishes to enter into any derivative transaction
for any purpose whatsoever (including, without limitation, interest rate
swap transactions so as to hedge all or any part of its exposure under
this Agreement to interest rate fluctuations), it shall advise the Bank in
writing.
|
|
2.7.2
|
Any
such derivative transaction shall be concluded with the Bank under the
Master Swap Agreement provided however that no such derivative transaction
shall be concluded unless the Bank first agrees to it in
writing. If and when any such derivative transaction has been
concluded, it shall constitute a Designated Transaction, and the Borrower
shall sign a Confirmation with the
Bank.
|
|
3
|
Interest and Interest Periods
|
|
3.1
|
Normal
Interest Rate
|
The
Borrower shall pay interest on the Loan in respect of each Interest Period
relating thereto on each Interest Payment Date (or, in the case of Interest
Periods of more than six (6) months, by instalments, the first such instalment
being payable three (3) months from the commencement of the Interest Period and
the subsequent instalments at intervals of three (3) months or, if shorter, the
period from the date of the preceding instalment until the Interest Payment Date
relative to such Interest Period) at the rate per annum determined by the Bank
to be the aggregate of (a) the Margin and (b) LIBOR for such Interest
Period.
|
3.2
|
Selection
of Interest Periods
|
The
Borrower may by notice received by the Bank not later than 10:00 a.m. on the
second Banking Day before the beginning of each Interest Period specify whether
such Interest Period shall have a duration of one (1) month, three (3) months,
six (6) months, nine (9) months or twelve (12) months or such other period
(shorter than twelve (12) months) as the Borrower may select and the Bank may,
in its absolute discretion, agree.
9
|
3.3
|
Determination
of Interest Periods
|
Every
Interest Period shall be of the duration specified by the Borrower pursuant to
clause 3.2 but so that:
|
3.3.1
|
the
initial Interest Period shall commence on the Drawdown Date and each
subsequent Interest Period shall commence on the last day of the previous
Interest Period;
|
|
3.3.2
|
if
any Interest Period would otherwise overrun a Repayment Date, then, in the
case of the last Repayment Date, such Interest Period shall end on such
Repayment Date, and, in the case of any other Repayment Date or Repayment
Dates, the Loan shall be divided into parts so that there is one part in
the amount of the repayment instalment due on each Repayment Date falling
during that Interest Period and having an Interest Period ending on the
relevant Repayment Date and another part in the amount of the balance of
the Loan having an Interest Period ascertained in accordance with
clause 3.2 and the other provisions of this clause 3.3;
and
|
|
3.3.3
|
if
the Borrower fails to specify the duration of an Interest Period in
accordance with the provisions of clause 3.2 and this clause 3.3
such Interest Period shall have a duration of three (3) months or such
other period as shall comply with this
clause 3.3.
|
|
3.4
|
Default
interest
|
If the
Borrower fails to pay any sum (including, without limitation, any sum payable
pursuant to this clause 3.4) on its due date for payment under any of the
Security Documents, the Borrower shall pay interest on such sum on demand from
the due date up to the date of actual payment (as well after as before
judgement) at a rate determined by the Bank pursuant to this
clause 3.4. The period beginning on such due date and ending on
such date of payment shall be divided into successive periods of not more than
six (6) months as selected by the Bank each of which (other than the first,
which shall commence on such due date) shall commence on the last day of the
preceding such period. The rate of interest applicable to each such
period shall be the aggregate (as determined by the Bank) of (a) two per cent
(2%) per annum, (b) the Margin and (c) LIBOR for such period. Such
interest shall be due and payable on the last day of each such period as
determined by the Bank and each such day shall, for the purposes of this
Agreement, be treated as an Interest Payment Date, provided that if such unpaid
sum is an amount of principal which became due and payable by reason of a
declaration by the Bank under clause 10.2.2 or a prepayment pursuant to
clauses 4.3, 8.3.1(a) or 12.1, on a date other than an Interest Payment
Date relating thereto, the first such period selected by the Bank shall be of a
duration equal to the period between the due date of such principal sum and such
Interest Payment Date and interest shall be payable on such principal sum during
such period at a rate of two per cent (2%) above the rate applicable thereto
immediately before it shall have become so due and payable. If, for
the reasons specified in clause 3.6.1, the Bank is unable to determine a
rate in accordance with the foregoing provisions of this clause 3.4,
interest on any sum not paid on its due date for payment shall be calculated at
a rate determined by the Bank to be two per cent (2%) per annum above the
aggregate of the Margin and the cost of funds to the Bank.
|
3.5
|
Notification
of Interest Periods and interest
rate
|
The
Bank shall notify the Borrower promptly of the duration of each Interest Period
and of each rate of interest determined by it under this
clause 3.
|
3.6
|
Market
disruption; non-availability
|
|
(a)
|
that
adequate and fair means do not exist for ascertaining LIBOR during such
Interest Period; or
|
10
|
(b)
|
that
deposits in Dollars are not available to the Bank in the London Interbank
Market in the ordinary course of business in sufficient amounts to fund
the Loan for such Interest Period,
|
|
|
the
Bank shall forthwith give notice (a “Determination Notice”)
thereof to the Borrower. A Determination Notice shall contain
particulars of the relevant circumstances giving rise to its
issue. After the giving of any Determination Notice the undrawn
amount of the Commitment shall not be borrowed until notice to the
contrary is given to the Borrower by the
Bank.
|
|
3.6.2
|
During
the period of ten (10) days after any Determination Notice has been given
by the Bank under clause 3.6.1, the Bank shall certify an alternative
basis (the “Substitute
Basis”) for maintaining the Loan. The Substitute Basis
may (without limitation) include alternative interest periods, alternative
currencies or alternative rates of interest but shall include a margin
above the cost of funds to the Bank equivalent to the
Margin. Each Substitute Basis so certified shall be binding
upon the Borrower and shall take effect in accordance with its terms from
the date specified in the Determination Notice until such time as the Bank
notifies the Borrower that none of the circumstances specified in
clause 3.6.1 continues to exist whereupon the normal interest rate
fixing provisions of the Agreement shall
apply.
|
|
4
|
Repayment
and prepayment
|
|
4.1
|
Repayment
|
The
Borrower shall repay the Loan by thirty two (32) instalments, one such
instalment to be repaid on each of the Repayment Dates. Subject to
the provisions of this Agreement, the amount of each of the first to eighth
instalments (inclusive) shall be Two million two hundred and fifty thousand
Dollars ($2,250,000), the amount of each of the ninth to twelfth instalments
(inclusive) shall be One million five hundred thousand Dollars ($1,500,000), the
amount of each of the thirteenth to the sixteenth instalments (inclusive) shall
be Seven hundred and fifty thousand Dollars ($750,000) and the amount of each of
the seventeenth to thirty first instalments (inclusive) shall be Five hundred
thousand Dollars ($500,000) and the amount of the final instalment shall be
Twelve million five hundred thousand Dollars ($12,500,000) (comprising a
repayment instalment of Five hundred thousand Dollars ($500,000) and a balloon
payment of Twelve million Dollars ($12,000,000) (the “Balloon
Instalment”)).
|
4.2
|
Voluntary
prepayment
|
The
Borrower may prepay the Loan in whole or part (being Two million Dollars
($2,000,000) or any larger sum which is an integral multiple of Two million
Dollars ($2,000,000)) on any Interest Payment Date relating to the part of the
Loan to be repaid without premium or penalty.
|
4.3
|
Prepayment
on Total Loss
|
On the
Ship becoming a Total Loss (or suffering damage or being involved in an incident
which, in the opinion of the Bank, may result in the Ship subsequently being
determined to be a Total Loss), before the Loan is drawn down, the obligation of
the Bank to advance the Loan shall immediately cease and the Commitment shall be
reduced to zero.
On the
date falling one hundred and twenty (120) days after that on which the Ship
became a Total Loss or, if earlier, on the date upon which the insurance
proceeds are, or Requisition Compensation (as defined in the Ship Security
Documents) is, received by the Borrower (or the Bank pursuant to the Security
Documents), the Borrower shall prepay the Loan in full.
For the
purpose of this Agreement, a Total Loss shall be deemed to have
occurred:
|
4.3.1
|
in
the case of an actual total loss of the Ship, on the actual date and at
the time the Ship was lost or, if such date is not known, on the date on
which the Ship was last reported;
|
|
4.3.2
|
in
the case of a constructive total loss of the Ship, upon the date and at
the time notice of abandonment of the Ship is given to the insurers of the
Ship for the time being;
|
11
|
4.3.3
|
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 the
Ship;
|
|
4.3.4
|
in
the case of Compulsory Acquisition, on the date upon which the relevant
requisition of title or other compulsory acquisition occurs;
and
|
|
4.3.5
|
in
the case of hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of the Ship (other than where the same amounts
to Compulsory Acquisition of the Ship) by any Government Entity, or by
persons purporting to act on behalf of any Government Entity, which
deprives the Borrower of the use of the Ship for more than sixty (60)
days, upon the expiry of the period of thirty (30) days after the date
upon which the relevant hijacking, theft, condemnation, capture, seizure,
arrest, detention or confiscation
occurred.
|
|
4.4
|
Amounts
payable on prepayment
|
|
4.5
|
Any
prepayment of all or part of the Loan under this Agreement shall be made
together with (a) accrued interest on the Loan, (b) any
additional amount payable under clauses 6.6 or 12.2 and (c) all
other sums payable by the Borrower to the Bank under this Agreement or any
of the other Security Documents including, without limitation, any accrued
commitment commission and amounts payable under
clause 11.
|
|
4.6
|
Notice
of prepayment; reduction of repayment
instalments
|
No
prepayment may be effected under clause 4.2 unless the Borrower shall have
given the Bank at least three (3) Banking Days' notice in writing of its
intention to make such prepayment. Every notice of prepayment shall
be effective only on actual receipt by the Bank, shall be irrevocable, shall
specify the amount to be prepaid and shall oblige the Borrower to make such
prepayment on the date specified. No amount prepaid may be reborrowed
and any amount prepaid pursuant to clauses 4.2 or 8.3.1(a) shall be applied
in reducing the repayment instalments under clause 4.1 (including the
Balloon Instalment) in inverse order of their due dates for
payment. The Borrower may not prepay the Loan or any part thereof
save as expressly provided in this Agreement.
|
4.7
|
Unwinding
of Designated Transactions
|
On or
prior to any repayment or prepayment of all or part of the Loan (including,
without limitation, pursuant to clause 4.3 following a Total Loss, pursuant to
clauses 4.2 or 8.3 or any other provision of this Agreement), the Borrower shall
upon the request of the Bank wholly or partially reverse, offset, unwind,
cancel, close out, net out or otherwise terminate one or more of the continuing
Designated Transactions so that the notional principal amount of the continuing
Designated Transactions thereafter remaining does not and will not in the future
(taking into account the scheduled amortisation) exceed the amount of the Loan
as reducing from time to time thereafter pursuant to clause 4.1.
|
5
|
Fees,
commitment commission and expenses
|
|
5.1
|
Fees
|
The
Borrower shall pay to the Bank:
|
5.1.1
|
on
the Drawdown Date an arrangement fee of One hundred and twenty thousand
Dollars ($120,000); and
|
|
5.1.2
|
on
the earlier of (a) the Drawdown Date and (b) the Termination Date,
commitment commission computed from 23 October 2007 at the rate of zero
point two five per cent (0.25%) per annum on the daily undrawn amount of
the Commitment.
|
12
| The fee referred to in clause 5.1.1 and the commitment commission referred to in clause 5.1.2 shall be non-refundable and the commitment commission referred to in clause 5.1.2 shall be payable by the Borrower to the Bank whether or not any part of the Commitment is ever advanced. |
|
5.2
|
Expenses
|
The
Borrower shall pay to the Bank on a full indemnity basis on demand all expenses
(including legal, printing and out-of-pocket expenses) incurred by the Bank
(whether or not any part of the Commitment is ever advanced):
|
5.2.1
|
in
connection with the negotiation, preparation, execution and, where
relevant, registration of the Security Documents and of any amendment or
extension of or the granting of any waiver or consent under, any of the
Security Documents; and
|
|
5.2.2
|
in
contemplation of, or otherwise in connection with, the enforcement of, or
preservation of any rights under, any of the Security Documents or
otherwise in respect of the moneys owing under any of the Security
Documents,
|
together
with interest at the rate referred to in clause 3.4 from the date on which
such expenses were incurred to the date of payment (as well after as before
judgement).
|
5.3
|
Value
Added Tax
|
All
fees and expenses payable pursuant to this clause 5 shall be paid together
with value added tax or any similar tax (if any) properly chargeable
thereon.
|
5.4
|
Stamp
and other duties
|
The
Borrower shall pay all stamp, documentary, registration or other like duties or
taxes (including any such duties or taxes payable by the Bank) imposed on or in
connection with any of the Underlying Documents, Security Documents or the Loan
and shall indemnify the Bank against any liability arising by reason of any
delay or omission by the Borrower to pay such duties or taxes.
|
6
|
Payments
and taxes; accounts and
calculations
|
|
6.1
|
No
set-off or counterclaim
|
The
Borrower acknowledges that in performing its obligations under this Agreement,
the Bank will be incurring liabilities to third parties in relation to the
funding of amounts to the Borrower, such liabilities matching the liabilities of
the Borrower to the Bank and that it is reasonable for the Bank to be entitled
to receive payments from the Borrower gross on the due date in order that the
Bank is put in a position to perform its matching obligations to the relevant
third parties. Accordingly, all payments to be made by the Borrower
under any of the Security Documents shall be made in full, without any set-off
or counterclaim whatsoever and, subject as provided in clause 6.6, free and
clear of any deductions or withholdings, in Dollars on the due date to such
account of the Bank at such bank in such place as the Bank may from time to time
specify for this purpose.
|
6.2
|
Payment
by the Bank
|
All
sums to be advanced by the Bank to the Borrower under this Agreement in respect
of the Loan shall be remitted in Dollars on the Drawdown Date to the account
specified in the Drawdown Notice.
|
6.3
|
Non-Banking
Days
|
When
any payment under any of the Security Documents would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended to the
next following Banking Day unless such Banking Day falls in the next calendar
month in which case payment shall be made on the immediately preceding Banking
Day.
13
|
6.4
|
Calculations
|
All
interest and other payments of an annual nature under any of the Security
Documents shall accrue from day to day and be calculated on the basis of actual
days elapsed and a three hundred and sixty (360) day year.
|
6.5
|
Certificates
conclusive
|
Any
certificate or determination of the Bank as to any rate of interest or any other
amount pursuant to and for the purposes of any of the Security Documents shall,
in the absence of manifest error, be conclusive and binding on the
Borrower.
|
6.6
|
Grossing-up
for Taxes
|
|
6.6.1
|
If
at any time the Borrower is required to make any deduction or withholding
in respect of Taxes from any payment due under any of the Security
Documents, the sum due from the Borrower in respect of such payment shall
be increased to the extent necessary to ensure that, after the making of
such deduction or withholding, the Bank receives on the due date for such
payment (and retains, free from any liability in respect of such deduction
or withholding), a net sum equal to the sum which it would have received
had no such deduction or withholding been required to be made and the
Borrower shall indemnify the Bank against any losses or costs incurred by
it by reason of any failure of the Borrower to make any such deduction or
withholding or by reason of any increased payment not being made on the
due date for such payment. The Borrower shall promptly deliver
to the Bank any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or
withholding as aforesaid.
|
|
6.6.2
|
For
the avoidance of doubt, clause 6.6.1 does not apply in respect of sums due
from the Borrower to the Bank under or in connection with the Master Swap
Agreement as to which sums the provisions of section 2(d) (Deduction or
Withholding for Tax) of the Master Swap Agreement shall
apply.
|
|
6.7
|
Loan
account
|
The
Bank shall maintain, in accordance with its usual practice, an account (which
shall be the “Account Current” referred to in the Mortgage) evidencing the
amounts from time to time lent by, owing to and paid to it under the Security
Documents. Such account shall, in the absence of manifest error, be
conclusive as to the amount from time to time owing by the Borrower under the
Security Documents.
|
7
|
Representations and warranties
|
|
7.1
|
Continuing
representations and warranties
|
The
Borrower represents and warrants to the Bank that:
|
7.1.1
|
Due
incorporation
|
|
|
the
Borrower and each of the other Security Parties are duly incorporated and
validly existing in good standing under the laws of the Xxxxxxxx Islands
as Xxxxxxxx Islands corporations and have power to carry on their
respective businesses as they are now being conducted and to own their
respective property and other
assets;
|
14
|
7.1.2
|
Corporate
power
|
|
|
the
Borrower has power to execute, deliver and perform its obligations under
the Underlying Documents and the Borrower's Security Documents and to
borrow the Commitment and each of the other Security Parties has power to
execute and deliver and perform its obligations under the Security
Documents and the Underlying Documents to which it is or is to be a party;
all necessary corporate, shareholder and other action has been taken to
authorise the execution, delivery and performance of the same and no
limitation on the powers of the Borrower to borrow will be exceeded as a
result of borrowing the Loan;
|
|
7.1.3
|
Binding
obligations
|
|
|
the
Security Documents and the Underlying Documents constitute or will, when
executed, constitute valid and legally binding obligations of the relevant
Security Parties enforceable in accordance with their respective
terms;
|
|
7.1.4
|
No
conflict with other obligations
|
|
|
the
execution and delivery of, the performance of their obligations under, and
compliance with the provisions of the Underlying Documents and the
Security Documents by the relevant Security Parties will not
(i) contravene any existing applicable law, statute, rule or
regulation or any judgement, decree or permit to which the Borrower or any
other Security Party is subject, (ii) conflict with, or result in any
breach of any of the terms of, or constitute a default under, any
agreement or other instrument to which the Borrower or any other Security
Party is a party or is subject or by which it or any of its property is
bound, (iii) contravene or conflict with any provision of the
constitutional documents of the Borrower or any other Security Party or
(iv) result in the creation or imposition of or oblige the Borrower or any
other member of the Group or any other Security Party to create any
Encumbrance (other than a Permitted Encumbrance) on the undertakings,
assets, rights or revenues of the Borrower or any other member of the
Group or any other Security
Party;
|
|
7.1.5
|
No
litigation
|
|
|
no
litigation, arbitration or administrative proceeding is taking place,
pending or, to the knowledge of the officers of the Borrower, threatened
against the Borrower or any other member of the Group or any other
Security Party which could have a material adverse effect on the business,
assets or financial condition of the Borrower or any other member of the
Group or any other Security
Party;
|
|
7.1.6
|
No
filings required
|
|
|
save
for the registration of the Mortgage with the Registry, it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of any of the Underlying Documents or any of the
Security Documents that they or any other instrument be notarised, filed,
recorded, registered or enrolled in any court, public office or elsewhere
in any Relevant Jurisdiction or that any stamp, registration or similar
tax or charge be paid in any Relevant Jurisdiction on or in relation to
the Underlying Documents or the Security Documents and the Underlying
Documents and each of the Security Documents is in proper form for its
enforcement in the courts of each Relevant
Jurisdiction;
|
|
7.1.7
|
Choice
of law
|
|
|
the
choice of English law to govern the Underlying Documents and the Security
Documents (other than the Mortgage and the Account Pledges), the choice of
Maltese law to govern the Mortgage and the choice of Greek law to govern
the Account Pledges, and the submissions by the Security Parties to the
non-exclusive jurisdiction of the English courts or, as the case may be,
the courts of Piraeus, are valid and
binding;
|
|
7.1.8
|
No
immunity
|
|
|
neither
the Borrower nor any other Security Party nor any of their respective
assets is entitled to immunity on the grounds of sovereignty or otherwise
from any legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgement, execution or other
enforcement);
|
15
|
7.1.9
|
Consents
obtained
|
|
|
every
consent, authorisation, licence or approval of, or registration with or
declaration to, governmental or public bodies or authorities or courts
required by any Security Party to authorise, or required by any Security
Party in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of each of the Underlying
Documents and each of the Security Documents or the performance by each
Security Party of its obligations under the Underlying Documents and the
Security Documents to which it is a party has been obtained or made and is
in full force and effect and there has been no default in the observance
of any of the conditions or restrictions (if any) imposed in, or in
connection with, any of the same;
and
|
|
7.1.10
|
Shareholdings
|
|
|
the
Borrower is a wholly-owned direct Subsidiary of the Corporate Guarantor,
all of the issued shares in the Manager are legally and ultimately
beneficially owned by the person or persons disclosed by the Borrower to
the Bank in the negotiation of this Agreement and no less than 25% of the
total issued voting share capital of the Corporate Guarantor is ultimately
beneficially owned by Mr Xxxxxx Xxxxxxxx and/or trusts or foundations of
which Mr. Xxxxxx Xxxxxxxx is
a beneficiary.
|
|
7.2
|
Initial
representations and warranties
|
The
Borrower further represents and warrants to the Bank that:
|
7.2.1
|
Pari
passu
|
|
|
the
obligations of the Borrower under this Agreement are direct, general and
unconditional obligations of the Borrower and rank at least pari passu
with all other present and future unsecured and unsubordinated
Indebtedness of the Borrower except for obligations which are mandatorily
preferred by law and not by
contract;
|
|
7.2.2
|
No
default under other Indebtedness
|
|
|
neither
the Borrower nor any other Security Party nor any other member of the
Group is (nor would with the giving of notice or lapse of time or the
satisfaction of any other condition or combination thereof be) in breach
of or in default under any agreement relating to Indebtedness to which it
is a party or by which it may be
bound;
|
|
7.2.3
|
Information
|
|
|
the
information, exhibits and reports furnished by any Security Party to the
Bank in connection with the negotiation and preparation of each of the
Security Documents are true and accurate in all material respects and not
misleading, do not omit material facts and all reasonable enquiries have
been made to verify the facts and statements contained therein; there are
no other facts the omission of which would make any fact or statement
therein misleading;
|
|
7.2.4
|
No
withholding Taxes
|
|
|
no
Taxes are imposed by withholding or otherwise on any payment to be made by
any Security Party under the Underlying Documents or the Security
Documents or are imposed on or by virtue of the execution or delivery by
the Security Parties of the Underlying Documents or the Security Documents
or any other document or instrument to be executed or delivered under any
of the Security Documents;
|
|
7.2.5
|
No
Default
|
| no Default has occurred and is continuing; |
16
|
7.2.6
|
The
Ship
|
| the Ship is and will on the Delivery Date be: |
|
(a)
|
in
the absolute ownership of the Borrower who will on and after the Delivery
Date be the sole, legal and beneficial owner of the
Ship;
|
|
(b)
|
registered
in the name of the Borrower through the offices of the Registry as a ship
under the laws and flag of the Flag
State;
|
|
(c)
|
operationally
seaworthy and in every way fit for service;
and
|
|
(d)
|
classed
with the Classification free of all requirements and recommendations of
the Classification Society;
|
|
7.2.7
|
Ship's
employment
|
|
|
the
Ship is not and will not, on or before the Delivery Date, be subject to
any charter or contract or to any agreement to enter into any charter or
contract which, if entered into after the date of the Ship Security
Documents would have required the consent of the Bank and, on or before
the Delivery Date, there will not be any agreement or arrangement whereby
the Earnings (as defined in the Ship Security Documents) may be shared
with any other person;
|
| neither the Ship, nor her Earnings, Insurances or Requisition Compensation (each as defined in the Ship Security Documents) nor the Accounts nor any other properties or rights which are, or are to be, the subject of any of the Security Documents nor any part thereof will be, on the Delivery Date, subject to any Encumbrance; |
|
7.2.9
|
Compliance
with Environmental Laws and
Approvals
|
| except as may already have been disclosed by the Borrower in writing to, and acknowledged in writing by, the Bank: |
|
(a)
|
the
Borrower and the other Relevant Parties and, to the best of the Borrower's
knowledge and belief (having made due enquiry), their respective
Environmental Affiliates have complied with the provisions of all
Environmental Laws;
|
|
(b)
|
the
Borrower and the other Relevant Parties and, to the best of the Borrower's
knowledge and belief (having made due enquiry), their respective
Environmental Affiliates have obtained all Environmental Approvals and are
in compliance with all such Environmental Approvals;
and
|
|
(c)
|
neither
the Borrower nor any other Relevant Party nor, to the best of the
Borrower's knowledge and belief (having made due enquiry), any of their
respective Environmental Affiliates has received notice of any
Environmental Claim that the Borrower or any other Relevant Party or any
such Environmental Affiliate is not in compliance with any Environmental
Law or any Environmental Approval;
|
|
7.2.10
|
No
Environmental Claims
|
|
|
except
as may already have been disclosed by the Borrower in writing to, and
acknowledged in writing by, the Bank, there is no Environmental Claim
pending or, to the best of the Borrower's knowledge and belief, threatened
against the Borrower or the Ship or any other Relevant Party or any other
Relevant Ship or, to the best of the Borrower's knowledge and belief
(having made due enquiry), any of their respective Environmental
Affiliates;
|
17
|
7.2.11
|
No
potential Environmental Claims
|
|
|
except
as may already have been disclosed by the Borrower in writing to, and
acknowledged in writing by, the Bank, there has been no emission, spill,
release or discharge of a Material of Environmental Concern from the Ship
or any other ship owned by, managed or crewed by or chartered to the
Borrower nor, (having made due enquiry) to the best of the Borrower's
knowledge and belief, from any other Relevant Ship owned by, managed or
crewed by or chartered to any other Relevant Party which could give rise
to an Environmental Claim;
|
|
7.2.12
|
ISPS
Code
|
| with effects from the Delivery Date, the Borrower has a valid and current ISSC in respect of the Ship and the Ship is in compliance with the ISPS Code; |
|
7.2.13
|
No
material adverse change
|
|
|
there
has been no material adverse change in the financial position of the
Borrower or any Security Party or any other member of the Group or the
consolidated financial position of the Group from that described by or on
behalf of the Borrower or any other Security Party to the Bank in the
negotiation of this Agreement;
and
|
|
7.2.14
|
Copies
true and complete
|
|
|
the
copies of the Underlying Documents delivered or to be delivered to the
Bank pursuant to clause 9.1 are, or will when delivered be, true and
complete copies of such documents; such documents constitute valid and
binding obligations of the parties thereto enforceable in accordance with
their respective terms and there will have been no amendments or
variations thereof or defaults
thereunder.
|
|
7.3
|
Repetition
of representations and warranties
|
|
|
On and as of the Drawdown Date and (except in relation to the
representations and warranties in clause 7.2) on each Interest
Payment Date, the Borrower shall (a) be deemed to repeat the
representations and warranties in clause 7.1 as if made with
reference to the facts and circumstances existing on such day and (b) be
deemed to further represent and warrant to the Bank that the then latest
audited financial statements delivered to the Bank (if any) have been
prepared in accordance with the Applicable Accounting Principles which
have been consistently applied and present fairly and accurately the
financial position of the Borrower and the consolidated financial position
of the Group, respectively, as at the end of the financial period to which
the same relate and the results of the operations of the Borrower and the
consolidated operations of the Group, respectively, for the financial
period to which the same relate and, as at the end of such financial
period, neither the Borrower nor the Corporate Guarantor nor any other
member of the Group had any significant liabilities (contingent or
otherwise) or any unrealised or anticipated losses which are not disclosed
by, or reserved against or provided for in, such financial
statements.
|
|
8
|
Undertakings
|
|
8.1
|
General
|
|
|
The
Borrower hereby undertakes with the Bank that, from the date of this
Agreement and so long as any moneys are owing under any of the Security
Documents and while all or any part of the Commitment remains outstanding,
it will:
|
|
8.1.1
|
Notice
of Default
|
|
|
promptly
inform the Bank of any occurrence of which it becomes aware which might
adversely affect the ability of any Security Party to perform its
obligations under any of the Security Documents and, without limiting the
generality of the foregoing, will inform the Bank of any Default forthwith
upon becoming aware thereof and will from time to time, if so requested by
the Bank, confirm to the Bank in writing that, save as otherwise stated in
such confirmation, no Default has occurred and is
continuing;
|
18
|
8.1.2
|
Consents
and licences
|
|
|
without
prejudice to clauses 7.1 and 9, obtain or cause to be obtained,
maintain in full force and effect and comply in all material respects with
the conditions and restrictions (if any) imposed in, or in connection
with, every consent, authorisation, licence or approval of governmental or
public bodies or authorities or courts and do, or cause to be done, all
other acts and things which may from time to time be necessary or
desirable under applicable law for the continued due performance of all
the obligations of the Security Parties under each of the Security
Documents;
|
|
8.1.3
|
| use the Loan exclusively for the purpose specified in clause 1.1; |
|
8.1.4
|
Pari
passu
|
| ensure that its obligations under this Agreement shall, at all times rank at least pari passu with all its other present and future unsecured and unsubordinated Indebtedness with the exception of any obligations which are mandatorily preferred by law and not by contract; |
|
8.1.5
|
|
|
prepare
or cause to be prepared financial statements of the Borrower and
consolidated financial statements of the Group in accordance with the
Applicable Accounting Principles consistently applied in respect of each
financial year and cause the same to be reported on by their respective
auditors and prepare or cause to be prepared unaudited financial
statements of the Borrower and unaudited consolidated financial statements
of the Group for each financial half-year on the same basis as the annual
statements and deliver as many copies of the same as the Bank may
reasonably require as soon as practicable but not later than one hundred
and eighty (180) days (in the case of the audited financial statements) or
ninety (90) days (in the case of the unaudited financial statements) after
the end of the financial period to which they
relate;
|
|
8.1.6
|
Delivery
of reports
|
|
|
deliver
to the Bank as many copies as the Bank may reasonably require at the time
of issue thereof of every report, circular, notice or like document issued
by the Borrower to its shareholders or creditors
generally;
|
|
|
provide
the Bank with such financial and other information concerning the
Borrower, the other Security Parties, any other member of the Group, the
Group as a whole and their respective affairs as the Bank may from time to
time reasonably require, including, without limitation, regarding their
financial standing, commitments, operations, vessel sales or purchases,
any new borrowings and all major financial developments in relation to
each Security Party, any other member of the Group and the Group as a
whole;
|
|
8.1.8
|
Know
your customer information
|
|
|
deliver
to the Bank such documents and evidence as the Bank shall from time to
time require relating to the verification of identity and knowledge of the
Bank’s customers and the compliance by the Bank with all necessary “know
your customer” or similar checks, always on the basis of applicable laws
and regulations or the Bank's own internal guidelines in each case as such
laws, regulations or internal guidelines apply from time to
time;
|
19
|
8.1.9
|
Obligations
under Security Documents
|
| duly and punctually perform each of the obligations expressed to be assumed by it under the Security Documents; |
|
8.1.10
|
Compliance
with Code
|
|
|
and
will procure that the Manager or any Operator will, comply with and ensure
that the Ship and the Manager or any Operator comply with the requirements
of the Code, including (but not limited to) the maintenance and renewal of
valid certificates pursuant thereto throughout the Security Period (as
defined in the Deed of Covenant) and will procure that each member of the
Group and each vessel thereof complies with the requirements of the
Code;
|
|
8.1.11
|
Withdrawal
of DOC and SMC
|
| and will procure that the Manager or any Operator will, immediately inform the Bank if there is any threatened or actual withdrawal of its Operator’s DOC or the SMC in respect of the Ship; |
|
8.1.12
|
Issuance
of DOC and SMC
|
|
|
and
will procure that the Manager or any Operator will, promptly inform the
Bank upon the issue to the Borrower, the Manager or any Operator of a DOC
and to the Ship of an SMC or the receipt by the Borrower, the Manager or
any Operator of notification that its application for the same has been
refused;
|
|
8.1.13
|
ISPS
Code Compliance
|
| and will procure that the Manager or any Operator will: |
|
(a)
|
maintain
at all times a valid and current ISSC respect of the
Ship;
|
|
(b)
|
immediately
notify the Bank in writing of any actual or threatened withdrawal,
suspension, cancellation or modification of the ISSC in respect of the
Ship; and
|
|
(c)
|
procure
that the Ship and any other vessel of the Group will comply at all times
with the ISPS Code;
|
|
8.1.14
|
Charters
|
|
|
without
prejudice to the rights of the Bank under the provisions of the relevant
Ship Security Documents, advise the Bank promptly of any Charter in
respect of the Ship and forthwith after its execution (a) deliver a
certified copy of each such Charter to the Bank, (b) execute a Charter
Assignment in relation to such Charter, (c) execute a notice of assignment
(in such form as the Bank may require in its discretion) of such Charter,
(d) procure that such notice of assignment is served on the relevant
Charterer and that the relevant Charterer signs an acknowledgement of such
notice (in such form as the Bank may require in its discretion), (e)
provide the Bank with any documents or evidence of the type specified in
schedule 2 relating to the Charter, the Charter Assignment, the notice of
assignment and its acknowledgment (including, but without limitation the
valid execution and binding effect thereof) as the Bank may require in its
sole discretion and (f) pay on the Bank’s demand all legal and other costs
incurred by the Bank in connection with or in relation to any such Charter
Assignment, notice of assignment and the acknowledgement thereof;
and
|
|
8.1.15
|
Minimum
liquidity
|
|
|
maintain
at all times in accounts held in its name with the Bank (which for the
purposes of this clause shall include the Accounts but shall exclude any
other accounts of the Borrower with the Bank which are subject to an
Encumbrance) a fair share of the Borrower’s
liquidity.
|
20
|
8.2
|
Negative
undertakings
|
The
Borrower undertakes with the Bank that, from the date of this Agreement and so
long as any moneys are owing under the Security Documents, it will not, without
the prior written consent of the Bank:
|
8.2.1
|
Negative
Pledge
|
|
|
permit
any Encumbrance (other than a Permitted Encumbrance) by the Borrower to
subsist, arise or be created or extended over all or any part of its
present or future undertaking, assets, rights or revenues to secure or
prefer any present or future Indebtedness of any Security Party or any
other person;
|
|
8.2.2
|
No
merger
|
| merge or consolidate with any other person or enter into a demerger, amalgamation, corporate reconstruction or corporate redomicilation; |
|
8.2.3
|
Disposals
|
|
sell, transfer, abandon, lend
or otherwise dispose of or cease to exercise direct control over any part
(being either alone or, when aggregated with all other disposals falling
to be taken into account pursuant to this clause 8.2.3, material in
the opinion of the Bank in relation to the undertaking, assets, rights and
revenues of the Borrower taken as a whole) of its present or future
undertaking, assets, rights or revenues (otherwise than by transfers,
sales or disposals for full consideration in the ordinary course of
trading, but which for the avoidance of doubt does not include the Ship)
whether by one or a series of transactions related or
not;
|
|
8.2.4
|
Other
business
|
|
undertake any business other
than the ownership and operation of the Ship and the chartering of the
Ship to third parties and will procure that no other Security Party
undertakes, without the prior written consent of the Bank, any business
other than that conducted by such Security Party at the date of this
Agreement;
|
|
8.2.5
|
Acquisitions
|
|
acquire any further assets
other than the Ship and rights arising under contracts entered into by or
on behalf of the Borrower in the ordinary course of its business of
owning, operating and chartering the
Ship;
|
|
8.2.6
|
Other
obligations
|
|
|
incur
any obligations except for obligations arising under the Underlying
Documents or the Security Documents or contracts entered into in the
ordinary course of its business of owning, operating and chartering the
Ship;
|
|
8.2.7
|
No
borrowing
|
| incur any Borrowed Money except for Borrowed Money pursuant to the Security Documents; |
|
8.2.8
|
Repayment
of borrowings
|
| repay the principal of, or pay interest on, or any other sum in connection with, any of its Borrowed Money except for Borrowed Money pursuant to the Security Documents; |
|
8.2.9
|
Guarantees
|
|
|
issue
any guarantees or indemnities or otherwise become directly or contingently
liable for the obligations of any person, firm, or corporation except
pursuant to the Security Documents (except for guarantees or indemnities
from time to time required in the ordinary course by any protection and
indemnity or war risks association with which the Ship is entered,
guarantees required to procure the release of the Ship from any arrest,
detention, attachment or levy or guarantees or undertakings required for
the salvage of the Ship);
|
21
|
8.2.10
|
Loans
|
| make any loans or grant any credit (save for normal trade credit in the ordinary course of business) to any person or agree to do so; |
|
8.2.11
|
Sureties
|
|
|
permit
any of its Indebtedness to be guaranteed or otherwise assured against
financial loss by any person (save for guarantees or indemnities from time
to time required in the ordinary course by any protection and indemnity or
war risks association with which the Ship is entered, guarantees required
to procure the release of the Ship from any arrest, detention, attachment
or levy or guarantees or undertakings required for the salvage of the
Ship);
|
|
8.2.12
|
Share
capital and distribution
|
purchase
or otherwise acquire for value any shares of its capital or, following the
occurrence of an Event of Default, distribute any of its present or future
assets, undertakings, rights or revenues to any of its
shareholders;
|
8.2.13
|
Subsidiaries
|
form or
acquire any Subsidiaries;
|
8.2.14
|
Shareholdings
|
change,
cause or permit any change in (a) the legal and/or ultimate beneficial ownership
of any of the shares in the Borrower or the Manager from that set out in clause
7.1.10 or (b) the ultimate beneficial ownership of the issued voting share
capital of the Corporate Guarantor such that Mr Xxxxxx Xxxxxxxx and/or any
trusts and/or foundations of which
Mr. Xxxxxx Xxxxxxxx is a beneficiary, cease to be the ultimate beneficial owners
of at least 25% of the
total issued voting share capital of the Corporate
Guarantor;
|
8.2.15
|
Change
of management of the Ship
|
appoint
any person to manage the Ship other than the Manager or terminate the Management
Agreement or vary or amend the terms thereof;
|
8.2.16
|
Constitutional
documents
|
permit,
cause or agree to any material amendment or variation of its constitutional
documents;
|
8.2.17
|
Auditors
and financial year
|
remove
or permit the removal of its auditors or appoint new ones or change its
financial year end; or
|
8.2.18
|
Designated
Transactions
|
enter
into any derivative transactions other than Designated
Transactions.
22
|
8.3
|
Security
value maintenance
|
|
8.3.1
|
If at
any time the Security Value shall be less than the Security Requirement, the
Bank may give notice to the Borrower requiring that such deficiency be remedied
and then the Borrower shall either:
The
provision of clauses 4.4 and any relevant provisions of clause 4.5 shall
apply to prepayments made under clause 8.3.1(a).
|
8.3.2
|
The
Ship shall, for the purposes of this clause 8.3, be valued as and when the
Bank shall in its absolute discretion require, by an independent firm of
shipbrokers appointed by the Bank in its sole discretion. Each such
valuation shall be made without, unless required by the Bank, physical
inspection and on the basis of a sale for prompt delivery, for cash at arm’s
length, on normal commercial terms as between a willing buyer and a willing
seller without taking into account the benefit of any charter-party or other
engagement concerning the Ship. Such valuation shall constitute the
value of the Ship for the purposes of this clause 8.3.
The
value of the Ship determined in accordance with the provisions of this
clause 8.3 shall be binding upon the parties hereto until such time as any
such further valuations shall be obtained.
|
8.3.3
|
Information
|
The
Borrower undertakes to the Bank to supply to the Bank and to any such
shipbrokers such information concerning the Ship and its condition as such
shipbrokers may reasonably require for the purpose of making any such
valuations.
|
8.3.4
|
Costs
|
All
costs in connection with the Bank obtaining any valuation of the Ship referred
to in clause 8.3.2 or in schedule 2, Part 2, and any valuation either of any
additional security for the purposes of ascertaining the Security Value at any
time or necessitated by the Borrower electing to constitute additional security
pursuant to clause 8.3.1(b) shall be borne by the Borrower.
|
8.3.5
|
Valuation
of additional security
|
For the
purpose of this clause 8.3, the market value of any additional security
provided or to be provided to the Bank shall be determined by the Bank in its
absolute discretion without any necessity for the Bank assigning any reason
thereto.
23
|
8.3.6
|
Documents
and evidence
|
In
connection with any additional security provided in accordance with this
clause 8.3, the Bank shall be entitled to receive such evidence and
documents of the kind referred to in schedule 2 as may in the Bank's
opinion be appropriate and such favourable legal opinions as the Bank shall in
its absolute discretion require.
|
9
|
Conditions
|
|
9.1
|
Documents
and evidence
|
The
obligation of the Bank to make the Commitment available shall be subject to the
condition
that:
|
9.1.1
|
the
Bank, or its duly authorised representative, shall have received, not
later than three (3) Banking Days before the day on which the Drawdown
Notice for the Loan is given, the documents and evidence specified in Part
1 of schedule 2 in form and substance satisfactory to the Bank;
and
|
|
9.1.2
|
the
Bank, or its duly authorised representative, shall have received, on or
prior to the Drawdown Date, the documents and evidence specified in Part 2
of schedule 2 in form and substance satisfactory to the
Bank.
|
|
9.2
|
General
conditions precedent
|
The
obligation of the Bank to advance the Loan shall be subject to the further
condition that, at the
time of the giving of the Drawdown Notice, and at the time of the making of the
Loan:
|
9.2.1
|
the
representations and warranties contained in clauses 7.1, 7.2 and
7.3(b) are true and correct on and as of each such time as if each was
made with respect to the facts and circumstances existing at such time;
and
|
|
9.2.2
|
no
Default shall have occurred and be continuing or would result from the
making of the Loan.
|
|
9.3
|
Waiver
of conditions precedent
|
The
conditions specified in this clause 9 are inserted solely for the benefit
of the Bank and may be
waived by the Bank in whole or in part and with or without
conditions.
|
9.4
|
Further
conditions precedent
|
|
|
Not
later than five (5) Banking Days prior to the Drawdown Date and not later
than five (5) Banking Days prior to each Interest Payment Date, the Bank
may request and the Borrower shall, not later than two (2) Banking
Days prior to such date, deliver to the Bank on such request further
favourable certificates and/or opinions as to any or all of the matters
which are the subject of clauses 7, 8, 9 and 10 of this
Agreement.
|
|
10
|
Events of Default
|
|
10.1
|
Events
|
There
shall be an Event of Default if:
|
10.1.1
|
Non-payment: the
Borrower or any other Security Party fails to pay any sum payable by it
under any of the Security Documents at the time, in the currency and in
the manner stipulated in the Security Documents (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) Banking Days of demand);
or
|
24
|
10.1.3
|
Breach of insurance
obligations: the Borrower or the Manager fails to obtain and/or
maintain the Insurances (as defined in, and in accordance with the
requirements of, the Ship Security Documents) or if any insurer in respect
of such Insurances cancels the Insurances or disclaims liability by
reason, in either case, of mis-statement in any proposal for the
Insurances or for any other failure or default on the part of the Borrower
or any other person or the Borrower commits any breach of or omits to
observe any of the obligations or undertakings expressed to be assumed by
it under clauses 8.2, 8.3 or 8.4 or the Corporate Guarantor commits any
breach or fails to observe any of the obligations or undertakings
expressed to be assumed by it under clauses 5.2 or 5.3 of the Corporate
Guarantee; or
|
|
10.1.4
|
Breach of
other obligations: the Borrower or any other Security Party commits
any breach of or omits to observe any of its obligations or undertakings
expressed to be assumed by it under any of the Security Documents (other
than those referred to in clauses 10.1.1, 10.1.2 and 10.1.3
above) and, in respect of any such breach or omission which in the opinion
of the Bank is capable of remedy, such action as the Bank may require
shall not have been taken within fourteen (14) days of the Bank notifying
the relevant Security Party of such default and of such required action;
or
|
|
10.1.5
|
Misrepresentation: any
representation or warranty made or deemed to be made or repeated by or in
respect of the Borrower or any other Security Party in or pursuant to any
of the Security Documents or in any notice, certificate or statement
referred to in or delivered under any of the Security Documents is or
proves to have been incorrect or misleading in any material respect;
or
|
|
10.1.6
|
Cross-default: any
Indebtedness of the Borrower or any other Security Party or any other
member of the Group is not paid when due or any Indebtedness of any
Security Party or other member of the Group becomes (whether by
declaration or automatically in accordance with the relevant agreement or
instrument constituting the same) due and payable prior to the date when
it would otherwise have become due (unless as a result of the exercise by
the relevant Security Party or other member of the Group of a voluntary
right of prepayment), or any creditor of any Security Party or other
member of the Group becomes entitled to declare any such Indebtedness due
and payable or any facility or commitment available to any Security Party
or other member of the Group relating to Indebtedness is withdrawn,
suspended or cancelled by reason of any default (however described) of the
person concerned unless the relevant Security Party or other member of the
Group shall have satisfied the Bank that such withdrawal, suspension or
cancellation will not affect or prejudice in any way the ability of the
relevant Security Party or the relevant member of the Group to pay its
debts as they fall due and fund its commitments, or any guarantee given by
any Security Party or other member of the Group in respect of Indebtedness
is not honoured when due and called upon and, in the case of the Corporate
Guarantor only, the amount or aggregate amount at any one time of all
Indebtedness of the Corporate Guarantor in relation to which any of the
foregoing events shall have occurred is equal to or greater than One
million Dollars ($1,000,000) or its equivalent in the currency in which
same is denominated and payable; or
|
|
10.1.7
|
Legal process: any
judgement or order made against the Borrower or any other Security Party
or other member of the Group is not stayed or complied with within fifteen
(15) days or a creditor attaches or takes possession of, or a distress,
execution, sequestration or other process is levied or enforced upon or
sued out against, any of the undertakings, assets, rights or revenues of
the Borrower or any other Security Party or other member of the Group and
is not discharged within fifteen (15) days;
or
|
25
|
10.1.8
|
Insolvency: any Security
Party or other member of the Group is unable or admits inability to pay
its debts as they fall due; suspends making payments on any of its debts
or announces an intention to do so; becomes insolvent; has assets the
value of which is less than the value of its liabilities (taking into
account contingent and prospective liabilities); or suffers the
declaration of a moratorium in respect of any of its Indebtedness;
or
|
|
10.1.9
|
Reduction or loss of
capital: a meeting is convened by the Borrower or any other
Security Party or other member of the Group for the purpose of passing any
resolution to purchase, reduce or redeem any of its share capital;
or
|
|
10.1.10
|
Winding up: any
corporate action, legal proceedings or other procedure or step is taken
for the purpose of winding up the Borrower or any other Security Party or
other member of the Group or an order is made or resolution passed for the
winding up of the Borrower or any other Security Party or other member of
the Group or a notice is issued convening a meeting for the purpose of
passing any such resolution; or
|
|
10.1.11
|
Administration: any
petition is presented, notice given or other step is taken for the purpose
of the appointment of an administrator of the Borrower or any other
Security Party or other member of the Group or the Bank believes that any
such petition or other step is imminent or an administration order is made
in relation to the Borrower or any other Security Party or other member of
the Group; or
|
|
10.1.12
|
Appointment of receivers and
managers: any administrative or other receiver is appointed of the
Borrower or any other Security Party or other member of the Group or any
part of its assets and/or undertaking or any other steps are taken to
enforce any Encumbrance over all or any part of the assets of the Borrower
or any other Security Party or other member of the Group;
or
|
|
10.1.13
|
Compositions: any
corporate action, legal proceedings or other procedures or steps are
taken, or negotiations commenced, by the Borrower or any other Security
Party or other member of the Group or by any of its creditors with a view
to the general readjustment or rescheduling of all or part of its
Indebtedness or to proposing any kind of composition, compromise or
arrangement involving such company and any of its creditors;
or
|
|
10.1.14
|
Analogous proceedings:
there occurs, in relation to the Borrower or any other Security Party or
other member of the Group, in any country or territory in which any of
them carries on business or to the jurisdiction of whose courts any part
of their assets is subject, any event which, in the opinion of the Bank,
appears in that country or territory to correspond with, or have an effect
equivalent or similar to, any of those mentioned in clauses 10.1.7 to
10.1.13 (inclusive) or the Borrower or any other Security Party or other
member of the Group otherwise becomes subject, in any such country or
territory, to the operation of any law relating to insolvency, bankruptcy
or liquidation; or
|
|
10.1.15
|
Cessation of business:
the Borrower or any other Security Party or other member of the Group
suspends or ceases or threatens to suspend or cease to carry on its
business; or
|
|
10.1.16
|
Invalidity: any of the
Security Documents shall at any time and for any reason become invalid or
unenforceable or otherwise cease to remain in full force and effect, or if
the validity or enforceability of any of the Security Documents shall at
any time and for any reason be contested by the Borrower or any other
Security Party which is a party thereto, or if the Borrower or any such
Security Party shall deny that it has any, or any further, liability
thereunder or shall otherwise repudiate any of the Security Documents or
do or cause or permit to be done any act or thing evidencing an intention
to repudiate any of the Security Documents;
or
|
|
10.1.17
|
Seizure: all or a
material part of the undertakings, assets, rights or revenues of, or
shares or other ownership interests in, the Borrower or any other Security
Party or any other member of the Group are seized, nationalised,
expropriated or compulsorily acquired by or under the authority of any
Government Entity; or
|
26
|
10.1.18
|
Unlawfulness: it becomes
impossible or unlawful at any time for the Borrower or any other Security
Party, to fulfil any of the covenants and obligations expressed to be
assumed by it in any of the Security Documents or for the Bank to exercise
the rights or any of them vested in it under any of the Security Documents
or otherwise; or
|
|
10.1.19
|
Repudiation: the
Borrower or any other Security Party repudiates any of the Security
Documents or does or causes or permits to be done any act or thing
evidencing an intention to repudiate any of the Security Documents;
or
|
|
10.1.20
|
Encumbrances
enforceable: any Encumbrance in respect of any of the property (or
part thereof) which is the subject of any of the Security Documents
becomes enforceable; or
|
|
10.1.21
|
De-listing etc.: the
shares of the Corporate Guarantor are de-listed or suspended from, or
cease to trade (whether permanently or temporarily) on, NASDAQ unless they
are in the meantime listed and trading on any other stock exchange of the
U.S.A.; or
|
|
10.1.22
|
Material adverse change:
there occurs, in the opinion of the Bank, a material adverse change in the
financial condition of the Borrower or any other Security Party or any
other member of the Group or the consolidated financial condition of the
Group by reference to the financial position of the Borrower or any other
Security Party or any other member of the Group or, as the case may be,
the consolidated financial position of the Group, respectively, as
described by or on behalf of the Borrower or any other Security Party to
the Bank in the negotiation of this Agreement;
or
|
|
10.1.23
|
Flag State: the Flag
State becomes involved in hostilities or civil war or there is a seizure
of civil power in the Flag State by unconstitutional means if, in any such
case such event could in the opinion of the Bank reasonably be expected to
have a material adverse effect on the security constituted by any of the
Security Documents; or
|
|
10.1.24
|
Environmental Claim: the
Borrower and/or any other Relevant Party and/or any of their respective
Environmental Affiliates fails to comply with any Environmental Law or any
Environmental Approval or the Ship or any other Relevant Ship is involved
in any incident which gives rise or which may give rise to an
Environmental Claim, if in any such case, such non compliance or incident
or the consequences thereof could (in the opinion of the Bank) reasonably
be expected to have a material adverse effect on the business, assets,
operations, property or financial condition of the Borrower or any other
Security Party or on the security created by any of the Security
Documents; or
|
|
10.1.25
|
Insurance requirements:
the Borrower or any other person fails or omits to comply with any
requirements of the protection and indemnity association or other insurer
with which the Ship is entered for insurance or insured against protection
and indemnity risks (including oil pollution risks) to the effect that any
cover (including, without limitation, liability for Environmental Claims
arising in jurisdictions where the Ship operates or trades) is or may be
liable to cancellation, qualification or exclusion at any time;
or
|
|
10.1.26
|
Arrest: the Ship is
arrested, confiscated, seized, taken in execution, impounded, forfeited,
detained in the exercise or purported exercise of any possessory lien or
other claim or otherwise taken from the possession of the Borrower and the
Borrower shall fail to procure the release of the Ship within a period of
three (3) days; or
|
|
10.1.27
|
Registration: the
registration of the Ship under the laws and flag of the Flag State is
cancelled or terminated; or
|
|
10.1.28
|
Shareholdings: there is
any change in (a) the legal and/or ultimate beneficial ownership of any of
the shares in the Borrower and/or the Manager from that existing on the
date of this Agreement as specified in clause 7.1.10 or (b) the ultimate
beneficial ownership of the issued voting share capital of the Corporate
Guarantor such that Mr Xxxxxx Xxxxxxxx and/or trusts and/or
foundations of which Mr.
Xxxxxx Xxxxxxxx is a beneficiary, cease to be the ultimate beneficial
owners of at least 25% of the total issued voting share
capital of the Corporate Guarantor;
or
|
27
|
10.1.29
|
Accounts: any moneys are
withdrawn from the Accounts other than in accordance with clause 14;
or
|
|
10.1.30
|
Material events: any
other event occurs or circumstance arises which, in the opinion of the
Bank, is likely materially and adversely to affect either (i) the ability
of the Borrower or any other Security Party to perform all or any of their
respective obligations under or otherwise to comply with the terms of any
of the Security Documents or (ii) the security created by any of the
Security Documents.
|
|
10.2
|
Acceleration
|
|
The Bank may,
without prejudice to any other rights of the Bank, at any time after the
happening of an Event of Default by notice to the Borrower declare
that:
|
|
10.2.1
|
the
obligation of the Bank to make the Commitment available shall be
terminated, whereupon the Commitment shall be reduced to zero forthwith;
and/or
|
|
10.3
|
Demand
basis
|
|
If, pursuant to
clause 10.2.2, the Bank declares the Loan to be due and payable on demand, the
Bank may by written notice to the Borrower (a) call for repayment of the
Loan on such date as may be specified whereupon the Loan shall become due
and payable on the date so specified together with all interest and
commitment commission accrued and all other sums payable under this
Agreement or (b) withdraw such declaration with effect from the date
specified in such notice.
|
|
11
|
Indemnities
|
|
11.1
|
Miscellaneous
indemnities
|
| The Borrower shall on demand indemnify the Bank, without prejudice to any of the Bank's other rights under any of the Security Documents against any loss (including loss of Margin) or expense which the Bank shall certify as sustained or incurred by it as a consequence of: |
|
11.1.1
|
any
default in payment by the Borrower of any sum under any of the Security
Documents when due; or
|
|
11.1.2
|
the
occurrence of any other Event of Default;
or
|
|
11.1.3
|
any
prepayment of the Loan or part thereof being made under clauses 4.3,
8.3.1(a) or 12.1, or any other repayment or prepayment of the Loan or part
thereof being made otherwise than on an Interest Payment Date relating to
the part of the Loan prepaid or repaid;
or
|
|
11.1.4
|
the
Loan not being made for any reason (excluding any default by the Bank)
after the Drawdown Notice for the Loan has been
given,
|
|
|
including,
in any such case, but not limited to, any loss or expense sustained or
incurred in maintaining or funding the Loan or any part thereof or in
liquidating or re-employing deposits from third parties acquired to effect
or maintain the Loan or any part
thereof.
|
|
11.2
|
Currency
indemnity
|
|
|
If
any sum due from the Borrower under any of the Security Documents or any
order or judgement given or made in relation thereto has to be
converted from the currency (the “first
currency”) in which the same is payable under the relevant Security
Document or under such order or judgement into another currency (the
“second
currency”) for the purpose of (a) making or filing a claim or
proof against the Borrower, (b) obtaining an order or judgement in
any court or other tribunal or (c) enforcing any order or judgement
given or made in relation to any of the Security Documents, the Borrower
shall indemnify and hold harmless the Bank from and against any loss
suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (ii) the rate or rates of
exchange at which the Bank may in the ordinary course of business purchase
the first currency with the second currency upon receipt of a sum paid to
it in satisfaction, in whole or in part, of any such order, judgement,
claim or proof. Any amount due from the Borrower under this
clause 11.2 shall
be due as a separate debt and shall not be affected by judgement being
obtained for any other sums due under or in respect of any of the Security
Documents and the term “rate
of exchange” includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
|
28
|
11.3
|
Environmental
indemnity
|
The
Borrower shall indemnify the Bank on demand and hold the Bank harmless from and
against all costs, expenses, payments, charges, losses, demands, liabilities,
actions, proceedings (whether civil or criminal), penalties, fines, damages,
judgements, orders, sanctions or other outgoings of whatever nature which may be
suffered, incurred or paid by, or made or asserted against the Bank at any time,
whether before or after the repayment in full of principal and interest under
this Agreement, relating to, or arising directly or indirectly in any manner or
for any cause or reason whatsoever out of an Environmental Claim made or
asserted against the Bank if such Environmental Claim would not have been, or
been capable of being, made or asserted against the Bank if it had not entered
into any of the Security Documents and/or exercised any of its rights, powers
and discretions thereby conferred and/or performed any of its obligations
thereunder and/or been involved in any of the transactions contemplated by the
Security Documents.
|
11.4
|
Central
Bank or European Central Bank reserve requirements
indemnity
|
The
Borrower shall on demand promptly indemnify the Bank against any cost incurred
or loss suffered by it as a result of its complying with the minimum reserve
requirements of the European Central Bank and/or with respect to maintaining
required reserves with the relevant national Central Bank to the extent that
such compliance relates to the Commitment or the Loan or deposits obtained by it
to fund or maintain the whole or part of the Loan and such cost or loss is not
recoverable by the Bank under clause 12.2.
|
12
|
Unlawfulness
and increased costs
|
|
12.1
|
Unlawfulness
|
If it
is or becomes contrary to any law or regulation for the Bank to advance the Loan
or to maintain the Commitment or fund the Loan, the Bank shall promptly give
notice to the Borrower whereupon (a) the Commitment shall be reduced to
zero and (b) the Borrower shall be obliged to prepay the Loan either
(i) forthwith or (ii) on a future specified date not being earlier
than the latest date permitted by the relevant law or regulation together with
interest accrued to the date of prepayment and all other sums payable by the
Borrower under this Agreement and/or the Master Swap Agreement.
|
12.2
|
Increased
costs
|
If the
result of any change in, or in the interpretation or application of, or the
introduction of, any law or any regulation, request or requirement, including
(without limitation) those relating to Taxation, capital adequacy, liquidity,
reserve assets, cash ratio deposits and special deposits, is to:
|
12.2.1
|
subject
the Bank to Taxes or change the basis of Taxation of the Bank with respect
to any payment under any of the Security Documents (other than Taxes or
Taxation on the overall net income, profits or gains of the Bank imposed
in the jurisdiction in which its principal or lending office under this
Agreement is located); and/or
|
29
|
12.2.2
|
increase
the cost to, or impose an additional cost on, the Bank in making or
keeping the Commitment available or maintaining or funding all or part of
the Loan; and/or
|
|
12.2.3
|
reduce
the amount payable or the effective return to the Bank under any of the
Security Documents; and/or
|
|
12.2.4
|
reduce
the Bank's rate of return on its overall capital by reason of a change in
the manner in which it is required to allocate capital resources to the
Bank's obligations under any of the Security Documents;
and/or
|
|
12.2.5
|
require
the Bank to make a payment or forego a return on or calculated by
reference to any amount received or receivable by the Bank under any of
the Security Documents,
|
| then and in each such case: |
|
(a)
|
the
Bank shall notify the Borrower in writing of such event promptly upon its
becoming aware of the same; and
|
|
(b)
|
the
Borrower shall on demand pay to the Bank the amount which the Bank
specifies (in a certificate setting forth the basis of the computation of
such amount but not including any matters which the Bank regards as
confidential) is required to compensate the Bank for such liability to
Taxes, cost, reduction, payment, foregone return or
loss.
|
For the
purposes of this clause 12.2, the Bank may in good faith allocate or spread
costs and/or losses among its assets and liabilities (or any class thereof) on
such basis as it considers appropriate.
|
12.3
|
Exception
|
Nothing
in clause 12.2 shall entitle the Bank to receive any amount in respect of
compensation for any such liability to Taxes, increased or additional cost,
reduction, payment, foregone return or loss to the extent that the same is the
subject of an additional payment under clause 6.6.
|
13
|
Security
and set-off
|
|
13.1
|
Application
of moneys
|
All
moneys received by the Bank under or pursuant to any of the Security Documents
and expressed to be applicable in accordance with the provisions of this
clause 13.1 shall be applied by the Bank in the following
manner:
|
13.1.1
|
first
in or toward payment of all unpaid fees, commissions and expenses which
may be owing to the Bank under any of the Security
Documents;
|
|
13.1.2
|
secondly
in or towards payment of any arrears of interest owing in respect of the
Loan or any part thereof;
|
|
13.1.3
|
thirdly
in or towards repayment of the Loan (whether the same is due and payable
or not);
|
|
13.1.4
|
fourthly
in or towards payment of any sums owing under the Master Swap
Agreement;
|
|
13.1.5
|
fifthly
in or towards payment to the Bank for any loss suffered by reason of any
such payment in respect of principal not being effected on an Interest
Payment Date relating to the part of the Loan
repaid;
|
|
13.1.6
|
sixthly
in or towards payment to the Bank of any other sums owing to it under any
of the Security Documents; and
|
30
|
13.1.7
|
seventhly
the surplus (if any) shall be paid to the Borrower or to whomsoever else
may be entitled to receive such
surplus.
|
|
13.2
|
Set-off
|
|
13.2.1
|
The
Borrower authorises the Bank (without prejudice to any of the Bank's
rights at law, in equity or otherwise), at any time and without notice to
the Borrower, to apply any credit balance to which the Borrower is then
entitled standing upon any account of the Borrower with any branch of the
Bank in or towards satisfaction of any sum due and payable from the
Borrower to the Bank under any of the Security Documents. For
this purpose, the Bank is authorised to purchase with the moneys standing
to the credit of such account such other currencies as may be necessary to
effect such application.
|
|
13.2.2
|
Without
prejudice to its rights hereunder, the Bank may at the same time as, or at
any time after, any Default occurs under this Agreement, set-off any
amount due now or in the future from the Borrower to the Bank under this
Agreement against any amount due from the Bank to the Borrower under the
Master Swap Agreement and apply the second amount in discharging the first
amount. The effect of any set-off under this sub-clause 13.2.2 shall be
effective to extinguish or, as the case may require, reduce the
liabilities of the Bank under the Master Swap
Agreement.
|
|
13.2.3
|
The
Bank shall not be obliged to exercise any right given to it by this
clause 13.2. The Bank shall notify the Borrower forthwith
upon the exercise or purported exercise of any right of set-off giving
full details in relation thereto.
|
|
13.2.4
|
Nothing
in this clause 13.2 shall be effective to create a charge or other
Encumbrance.
|
|
13.3
|
Further
assurance
|
The
Borrower undertakes that the Security Documents shall both at the date of
execution and delivery thereof and so long as any moneys are owing under any of
the Security Documents be valid and binding obligations of the respective
parties thereto and rights of the Bank enforceable in accordance with their
respective terms and that it will, at its expense, execute, sign, perfect and
do, and will procure the execution, signing, perfecting and doing by each of the
other Security Parties of, any and every such further assurance, document, act
or thing as in the reasonable opinion of the Bank may be necessary or desirable
for perfecting the security contemplated or constituted by the Security
Documents.
|
13.4
|
Conflicts
|
In the
event of any conflict between this Agreement and any of the other Borrower's
Security Documents, the provisions of this Agreement shall prevail.
|
14
|
Accounts
|
|
14.1
|
General
|
The
Borrower undertakes that it will:
|
14.1.1
|
on
or before the Drawdown Date, open each of the Accounts;
and
|
|
14.1.2
|
procure
that all moneys payable to the Borrower in respect of the Earnings and any
moneys payable to the Borrower pursuant to the Master Swap Agreement
shall, unless and until the Bank directs to the contrary pursuant to
clause 2.1.1 of the Deed of Covenant, be paid to the Earnings
Account.
|
|
14.2
|
Account
terms
|
Amounts
standing to the credit of the Accounts shall (unless otherwise agreed between
the Bank and the Borrower), bear interest at the rates from time to time offered
by the Bank to its prime customers for Dollar deposits in comparable amounts for
comparable periods. Interest shall accrue on the Accounts from day to
day and be calculated on the basis of actual days elapsed and a three hundred
and sixty (360) day year and shall be credited to the Accounts at such times as
the Bank and the Borrower shall agree.
31
|
14.3
|
Earnings
Account: withdrawals
|
Unless
the Bank otherwise agrees in writing, the Borrower shall not be entitled to
withdraw any moneys from the Earnings Account at any time from the date of this
Agreement and so long as any moneys are owing under the Security Documents save
that, unless and until a Default shall occur and the Bank shall direct to the
contrary, the Borrower may withdraw moneys from the Earnings Account for the
following purposes:
|
14.3.1
|
to
transfer any Retention Amounts to the Retention
Account;
|
|
14.3.2
|
to
pay any amount to the Bank in or towards payments of any instalments of
interest or principal or any other amounts then payable pursuant to the
Security Documents;
|
|
14.3.3
|
to
pay the proper and reasonable operating expenses of the
Ship;
|
|
14.3.4
|
to
pay the proper and reasonable expenses of administering the affairs of the
Borrower; and
|
|
14.3.5
|
to
make any payment of dividends declared in accordance with clause
8.2.12.
|
|
14.4
|
Retention
Account: credits and withdrawals
|
|
14.4.1
|
The
Borrower hereby undertakes with the Bank that it will, from the date of
this Agreement and so long as any moneys are owing under the Security
Documents, on each Retention Date pay to the Bank for credit to the
Retention Account, the Retention Amount for such Retention Date provided
however that, to the extent that there are moneys standing to the credit
of the Earnings Account, such moneys shall, up to an amount equal to the
Retention Amount, be transferred to the Retention Account on that
Retention Date (and the Borrower hereby irrevocably and unconditionally
instructs and authorises the Bank to effect each such transfer) and to
that extent the Borrower’s obligations to make the payments referred to in
this clause 14.4.1 shall have been fulfilled upon such transfer being
effected.
|
|
14.4.2
|
Unless
and until there shall occur an Event of Default (whereupon the provisions
of clause 14.5 shall apply), all Retention Amounts credited to the
Retention Account together with interest from time to time accruing or at
any time accrued thereon shall be applied by the Bank (and the Borrower
hereby irrevocably and unconditionally instructs and authorises the Bank
so to apply the same) upon each Repayment Date, and on each day that
interest is payable pursuant to clause 3.1, in or towards payment to
the Bank of the instalment then falling due for repayment or (as the case
may be) the amount of interest then due. Each such application
by the Bank shall constitute a payment in or towards satisfaction of the
Borrower’s corresponding payment obligations under this Agreement but
shall be strictly without prejudice to the obligations of the Borrower to
make any such payment to the extent that the aforesaid application by the
Bank is insufficient to meet the
same.
|
|
14.4.3
|
Unless
the Bank otherwise agrees in writing and subject to clause 14.3.2,
the Borrower shall not be entitled to withdraw any moneys from the
Retention Account at any time from the date of this Agreement and so long
as any moneys are owing under the Security
Documents.
|
|
14.5
|
Application
of Accounts
|
At any
time after the occurrence of an Event of Default, the Bank may, without notice
to the Borrower, apply all moneys then standing to the credit of the Accounts
(together with interest from time to time accruing or accrued thereon) in or
towards satisfaction of any sums due to the Bank under the Security Documents in
the manner specified in clause 13.1.
32
|
14.6
|
Pledging
of accounts
|
The
Accounts and all amounts from time to time standing to the credit thereof shall
be subject to the security constituted and the rights conferred by the Account
Pledges.
|
15
|
Assignment,
transfer and lending office
|
|
15.1
|
Benefit
and burden
|
This
Agreement shall be binding upon, and shall enure for the benefit of, the Bank
and the Borrower and their respective successors in title.
|
15.2
|
No
assignment by Borrower
|
The
Borrower may not assign or transfer any of its rights or obligations under this
Agreement.
|
15.3
|
Assignment
by Bank
|
The
Bank may assign all or any part of its rights under this Agreement or under any
of the other Security Documents to any other bank or financial institution (an
“Assignee”) with the
prior consent of the Borrower (such consent not to be unreasonably withheld and
the request for which shall be promptly responded to) except if the Assignee is
a Related Company of the Bank in which case no such prior consent is required,
the Borrower consenting to any such assignment by its execution of this
Agreement.
|
15.4
|
Transfer
|
The
Bank may transfer all or any part of its rights, benefits and/or obligations
under this Agreement and/or any of the other Security Documents to any one or
more banks or other financial institutions (a “Transferee”):
|
15.4.1
|
with
the prior written consent of the Borrower (such consent not to be
unreasonably withheld and the request for which shall be promptly
responded to), unless the Transferee shall be a Related Company of the
Bank (in which case no such consent shall be required, the Borrower
consenting to any such transfer by its execution of this Agreement);
and
|
|
15.4.2
|
if
the Transferee, by delivery of such undertaking as the Bank may approve,
becomes bound by the terms of this Agreement and agrees to perform all or,
as the case may be, part of the Bank’s obligations under this
Agreement.
|
|
15.5
|
Documenting
assignments and transfers
|
If the
Bank assigns all or any part of its rights or transfers all or any part of its
rights, benefits and/or obligations as provided in clause 15.3 or clause
15.4, the Borrower undertakes, immediately on being requested to do so by the
Bank and at the cost of the Bank, to enter into, and procure that the other
Security Parties shall enter into, such documents as may be necessary or
desirable to transfer to the Assignee or Transferee all or the relevant part of
the Bank's interest in the Security Documents and all relevant references in
this Agreement to the Bank shall thereafter be construed as a reference to the
Bank and/or its Assignee or Transferee (as the case may be) to the extent of
their respective interests.
|
15.6
|
Lending
office
|
The
Bank shall lend through its office at the address specified in the definition of
“Bank” in clause 1.2 or
through any other office of the Bank selected from time to time by it through
which the Bank wishes to lend for the purposes of this Agreement. If
the office through which the Bank is lending is changed pursuant to this
clause 15.6, the Bank shall notify the Borrower promptly of such
change.
33
|
15.7
|
Disclosure
of information
|
The
Bank may disclose to a prospective assignee, transferee or to any other person
who may propose entering into contractual relations with the Bank in relation to
this Agreement such information about the Borrower as the Bank shall consider
appropriate.
|
16
|
Notices
and other matters
|
|
16.1
|
Notices
|
Every
notice, request, demand or other communication under this Agreement or (unless
otherwise provided therein) under any of the other Security Documents
shall:
|
16.1.1
|
be
in writing delivered personally or by first-class prepaid letter (airmail
if available) or facsimile transmission or other means of
telecommunication in permanent written
form;
|
|
16.1.2
|
be
deemed to have been received, subject as otherwise provided in the
relevant Security Document, in the case of a letter, when delivered
personally or three (3) days after it has been put in the post and, in the
case of a facsimile transmission or other means of telecommunication in
permanent written form, at the time of despatch (provided that if the date
of despatch is not a business day in the country of the addressee or if
the time of despatch is after the close of business in the country of the
addressee it shall be deemed to have been received at the opening of
business on the next such business day);
and
|
|
16.1.3
|
be
sent:
|
|
(a)
|
if
to the Borrower at:
|
c/o
DryShips Inc. (Athens office)
Omega
Xxxxxxxx
00
Xxxxxxxxx Xxxxxx
000 00
Xxxxxxxx
Xxxxxx
Fax
no: x00 000 0000 000
Attention: Xx
Xxxxxxxxx Xxxxxxxxx
|
(b)
|
if
to the Bank at:
|
EFG
Eurobank Ergasias S.A.
83 Akti
Miaouli & Flessa Xxxxxx
000 00
Xxxxxxx
Xxxxxx
Fax
No: x00 000 000 0000
Attention: The
Shipping Manager
| or to such other address and/or numbers as is notified by one party to the other party under this Agreement. |
|
16.2
|
No
implied waivers, remedies
cumulative
|
No
failure or delay on the part of the Bank to exercise any power, right or remedy
under any of the Security Documents shall operate as a waiver thereof, nor shall
any single or partial exercise by the Bank of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy. The remedies provided in the Security
Documents are cumulative and are not exclusive of any remedies provided by
law.
34
|
16.3
|
English
language
|
All
certificates, instruments and other documents to be delivered under or supplied
in connection with any of the Security Documents shall be in the English
language or shall be accompanied by a certified English translation upon which
the Bank shall be entitled to rely.
|
17
|
Governing law and jurisdiction
|
|
17.1
|
Law
|
This
Agreement is governed by, and shall be construed in accordance with, English
law.
|
17.2
|
Submission
to jurisdiction
|
The
Borrower agrees, for the benefit of the Bank, that any legal action or
proceedings arising out of or in connection with this Agreement against the
Borrower or any of its assets may be brought in the English
courts. The Borrower irrevocably and unconditionally submits to the
jurisdiction of such courts and irrevocably designates, appoints and empowers
Ince & Co at present of Xxxxxxxxxxxxx Xxxxx, 0 Xx. Xxxxxxxxx’s Way, Xxxxxx
X0X 0XX, Xxxxxxx to receive for it and on its behalf, service of process issued
out of the English courts in any such legal action or
proceedings. The submission to such jurisdiction shall not (and shall
not be construed so as to) limit the right of the Bank to take proceedings
against the Borrower in the courts of any other competent jurisdiction nor shall
the taking of proceedings in any one or more jurisdictions preclude the taking
of proceedings in any other jurisdiction, whether concurrently or
not. The parties further agree that only the Courts of England and
not those of any other State shall have jurisdiction to determine any claim
which the Borrower may have against the Bank arising out of or in connection
with this Agreement.
|
17.3
|
Contracts
(Rights of Third Parties) Xxx 0000
|
No term
of this Agreement is enforceable under the Contracts (Rights of Third Parties)
Xxx 0000 by a person who is not a party to this Agreement.
IN WITNESS whereof the
parties to this Agreement have caused this Agreement to be duly executed on the
date first above written.
35
Schedule 1
Form
of Drawdown Notice
(referred
to in clause 2.2)
|
To:
|
EFG
Eurobank Ergasias S.A.
|
83 Akti
Miaouli & Flessa Xxxxxx
000 00
Xxxxxxx
Xxxxxx
[·] 200[·]
U.S.$47,000,000
Loan
Loan
Agreement dated [·]
2007 (the “Loan Agreement”)
We
refer to the above Loan Agreement and hereby give you notice that we wish to
draw down the Loan, namely $[47,000,000] on [·] 200[·] and select a first
Interest Period in respect thereof of [·] months. The
funds should be credited as follows: [insert details]
We
confirm that:
|
(a)
|
no
event or circumstance has occurred and is continuing which constitutes a
Default;
|
|
(b)
|
the
representations and warranties contained in clauses 7.1, 7.2 and
7.3(b) of the Loan Agreement are true and correct at the date hereof as if
made with respect to the facts and circumstances existing at such
date;
|
|
(c)
|
the
borrowing to be effected by the drawdown of the Loan will be within our
corporate powers, has been validly authorised by appropriate corporate
action and will not cause any limit on our borrowings (whether imposed by
statute, regulation, agreement or otherwise) to be exceeded;
and
|
|
(d)
|
there
has been no material adverse change in our financial position or in that
of any Security Party or any other member of the Group nor in the
consolidated financial position of the Group from that described by us or
any other Security Party to the Bank in the negotiation of the Loan
Agreement.
|
Words
and expressions defined in the Loan Agreement shall have the same meanings where
used herein.
………………………………………………………
For and
on behalf of
IASON
OWNING COMPANY LIMITED
36
Schedule 2
Documents
and evidence required as conditions precedent to the
Loan
being made
(referred
to in clause 9.1)
Part
1
|
1
|
Constitutional
documents
|
Copies,
certified by an officer or a legal advisor of each Security Party as true,
complete and up to date copies of all documents which contain or establish or
relate to the constitution of that Security Party;
|
2
|
Corporate
authorisations
|
copies
of resolutions of the directors and certificates of resolutions of the
stockholders of each Security Party approving such of the Underlying Documents
and the Security Documents to which such Security Party is, or is to be, a party
and authorising the signature, delivery and performance of such Security Party's
obligations thereunder, certified (in a certificate dated no earlier than
fifteen (15) Banking Days prior to the date of this Agreement) by an officer or
a legal advisor of such Security Party as:
|
2.1
|
being
true and correct;
|
|
2.2
|
being
duly passed at meetings of the directors of such Security Party and of the
stockholders of such Security Party each duly convened and
held;
|
|
2.3
|
not
having been amended, modified or revoked;
and
|
|
2.4
|
being
in full force and effect,
|
together
with originals or certified copies of any powers of attorney issued by any
Security Party pursuant to such resolutions;
|
3
|
Specimen
signatures
|
copies
of the signatures of the persons who have been authorised on behalf of each
Security Party to sign such of the Underlying Documents and the Security
Documents to which such Security Party is, or is to be, party and to give
notices and communications, including notices of drawing, under or in connection
with the Security Documents, certified (in a certificate dated no earlier than
five (5) Banking Days prior to the date of this Agreement) by an officer or a
legal advisor of such Security Party as being the true signatures of such
persons;
|
4
|
Certificate
of incumbency
|
a list
of directors and officers of each Security Party specifying the names and
positions of such persons, certified (in a certificate dated no earlier than
five (5) Banking Days prior to the date of this Agreement) by an officer or a
legal advisor of such Security Party to be true, complete and up to
date;
|
5
|
Borrower's
consents and approvals
|
a
certificate (dated no earlier than five (5) Banking Days prior to the date of
this Agreement) from an officer of the Borrower that no consents,
authorisations, licences or approvals are necessary for the Borrower to
authorise or are required by the Borrower in connection with the borrowing by
the Borrower of the Loan pursuant to this Agreement or the other Borrower's
Security Documents;
37
|
6
|
Due
diligence
|
evidence
that all information required in relation to any Security Party in order for the
Bank to complete its “know your customer” and other due diligence formalities in
connection with this Agreement and the other Security Documents has been
provided and is satisfactory in all respects to the Bank;
|
7
|
Other
consents and approvals
|
a
certificate (dated no earlier than five (5) Banking Days prior to the date of
this Agreement) from an officer of each Security Party (other than the Borrower)
that no consents, authorisations, licences or approvals are necessary for such
Security Party to guarantee and/or grant security for the borrowing by the
Borrower of the Commitment pursuant to this Agreement and execute, deliver and
perform the Security Documents insofar as such Security Party is a party
thereto;
|
8
|
Security
Documents
|
the
Master Swap Agreement, the Account Pledges, the Corporate Guarantee and the
Master Agreement Security Deed each duly executed;
|
9
|
Certified
Underlying Documents
|
a copy, certified (in a
certificate dated no earlier than fifteen (15) Banking Days prior to the date of
this Agreement) as a true and complete copy by an officer or a legal advisor of
the Borrower of the Contract and the Management
Agreement;
|
10
|
Borrower’s
process agent
|
| a letter from the Borrower’s agent for receipt of service of proceedings referred to in clause 17.2 accepting its appointment under the said clause and under each of the other Security Documents in which it is or is to be appointed as the Borrower’s agent; |
|
11
|
Security
Parties’ process agent
|
| a letter from each Security Party’s agent for receipt of service of proceedings accepting its appointment under each of the Security Documents in which it is or is to be appointed as such Security Party’s agent; |
|
12
|
Accounts
|
evidence
that each of the Accounts have been opened, together with duly completed mandate
forms in respect thereof; and
|
13
|
Further
matters or opinions
|
any
such other matter or further opinion as may be required by the
Bank.
38
Part
2
|
14
|
Drawdown
notice
|
The
Drawdown Notice duly executed;
|
15
|
Ship
conditions
|
Evidence that the Ship:
|
15.1
|
Registration
and Encumbrances
|
is
registered in the name of the Borrower through the Registry under the laws and
flag of the Flag State and that the Ship and its Earnings, Insurances and
Requisition Compensation (each such term as defined in the Deed of Covenant) are
free of Encumbrances;
|
15.2
|
Classification
|
maintains
the Classification free of all requirements and recommendations of the
Classification Society; and
|
15.3
|
Insurance
|
is
insured in accordance with the provisions of the Ship Security Documents and all
requirements of the Ship Security Documents in respect of such insurances have
been complied with (including without limitation, confirmation from the
protection and indemnity association or other insurer with which the Ship is, or
is to be, entered for insurance or insured against protection and indemnity
risks (including oil pollution risks) that any necessary declarations required
by the association or insurer for the removal of any oil pollution exclusion
have been made and that any such exclusion does not apply to the
Ship);
|
16
|
Ship
Security Documents
|
the
Ship Security Documents duly executed;
|
17
|
Title
and deletion
|
evidence
that the transfer of title to the Ship from the Seller to the
Borrower has been duly recorded at the Registry free of Encumbrances and that
the prior registration of the Ship (if any) in the name of the Seller has been
cancelled;
|
18
|
Mortgage
registration
|
evidence
that the Mortgage over the Ship has been registered against the Ship through the
Registry under the laws and flag of the Flag State;
|
19
|
Notices
of assignment
|
copies
of duly executed notices of assignment required by the terms of the Ship
Security Documents and in the forms prescribed by the Ship Security
Documents;
|
20
|
Valuation
|
a
valuation of the Ship made in accordance with clause 8.3.2 at the Borrower’s
cost and dated not more than 10 days prior to the Drawdown Date, evidencing the
market value of the Ship;
39
|
21
|
Fees
|
evidence
that any fees and commission due under clause 5 have been paid in
full;
|
22
|
Xxxxxxxx
Islands opinion
|
an
opinion of Poles, Tublin, Stratakis, Xxxxxxxx & Weichert, LLP special legal
advisers on matters of Xxxxxxxx Islands law, to the Bank;
|
23
|
Maltese
opinion
|
an
opinion of Fenech & Fenech, special legal advisers on matters of Maltese law
to the Bank;
|
24
|
Security
Parties’ process agent
|
a
letter from each Security Party’s agent for receipt of service of proceedings
accepting its appointment under each of the Security Documents in which it is or
is to be appointed as such Security Party’s agent;
|
25
|
Xxxx
of sale and delivery documents
|
a copy,
certified as a true and complete copy by an officer or a legal advisor of the
Borrower, of a duly executed and notarised/legalised xxxx of sale in respect of
the Ship evidencing the full Contract Price and the other delivery documents
duly executed and exchanged pursuant to the Contract;
|
26
|
Readiness
and payment of Contract Price
|
evidence
that the Ship is in all respects ready for Delivery and that the Contract Price
has been paid in full;
|
27
|
Insurance
opinion
|
an
opinion (at the expense of the Borrower) of insurance consultants to the Bank on
the insurances effected or to be effected in respect of the Ship upon and
following the Drawdown Date;
|
28
|
SMC/DOC
|
a copy,
certified (in a certificate dated no earlier than five (5) Banking Days prior to
the date of this Agreement) as a true and complete copy by an officer or a legal
advisor of the Borrower of the DOC issued to the Operator and the SMC for the
Ship (or an application for the issuance thereof shortly after
Delivery);
|
29
|
ISPS
Code compliance
|
|
29.1
|
evidence
satisfactory to the Bank that the Ship is subject to a ship security plan
which complies with the ISPS Code;
and
|
|
29.2
|
a
copy certified (in a certificate dated no earlier than five (5) Banking
Days prior to the Drawdown Date) as a true and complete copy by an officer
or a legal advisor of the Borrower of the ISSC for the Ship (or an
application for the issuance thereof shortly after Delivery) and the
continuous synopsis record required by the ISPS Code in respect of the
Ship; and
|
|
30
|
Further
matters or opinions
|
any
such other matter or further opinion as may be required by the
Bank.
40
Schedule 3
Form
of Corporate Guarantee
41
Schedule 4
Form
of Mortgage
42
Schedule 5
Form
of Deed of Covenant
43
Schedule 6
Form
of Manager’s Undertaking
44
Schedule 7
Form
of Master Swap Agreement
45
Schedule 8
Form
of Master Agreement Security Deed
46
|
SIGNED by
for
and on behalf of
IASON
OWNING COMPANY LIMITED
|
)
)
)
|
......................................
Attorney-in-Fact
|
|
SIGNED by
and
by
for
and on behalf of
EFG
EUROBANK ERGASIAS S.A.
|
)
)
)
)
)
|
......................................
Authorised
signatory
......................................
Authorised
signatory
|
47
SK 23113 0002
867877
