DATED JULY 30, 2007 LOAN AGREEMENT for a US$35,000,000 Loan to GRASMERE MARITIME LIMITED, ULLSWATER MARITIME LIMITED and WINDERMERE MARITIME LIMITED provided by THE BANKS AND FINANCIAL INSTITUTIONS SET OUT IN SCHEDULE 1 Arranger KfW Swap Bank KfW...
Exhibit
10.1
DATED
JULY 30, 2007
for
a
US$35,000,000
Loan
to
GRASMERE
MARITIME LIMITED,
ULLSWATER
MARITIME LIMITED
and
WINDERMERE
MARITIME LIMITED
provided
by
THE
BANKS AND FINANCIAL INSTITUTIONS SET OUT IN SCHEDULE 1
Arranger
KfW
Swap
Bank
KfW
Agent
KfW
Security
Trustee
KfW
Contents
|
Clause
|
Page
|
|
|
1
|
Purpose
and definitions
|
1
|
|
2
|
The
Commitment and the Advances
|
13
|
|
3
|
Interest
and Interest Periods
|
14
|
|
4
|
Repayment
and prepayment
|
16
|
|
5
|
Fees,
commitment commission and expenses
|
20
|
|
6
|
Payments
and taxes; accounts and calculations
|
20
|
|
7
|
Representations
and warranties
|
22
|
|
8
|
Undertakings
|
26
|
|
9
|
Conditions
|
31
|
|
10
|
Events
of Default
|
32
|
|
11
|
Indemnities
|
35
|
|
12
|
Unlawfulness
and increased costs
|
36
|
|
13
|
Security,
set off and pro-rata payments
|
38
|
|
14
|
Accounts
|
40
|
|
15
|
Assignment,
substitution and lending office
|
40
|
|
16
|
Agent
and Security Trustee
|
42
|
|
17
|
Notices
and other matters
|
43
|
|
18
|
Governing
law and jurisdiction
|
45
|
|
Schedule
1 The Banks and their Commitments
|
47
|
|
Schedule
2 Form of Drawdown Notice
|
48
|
|
Schedule
3 Documents and evidence required as conditions precedent to making
available the Commitment
|
49
|
|
Schedule
4 Form of Substitution Certificate
|
55
|
|
Schedule
5 Form of Master Swap Agreement
|
59
|
|
Schedule
6 Form of Corporate Guarantee
|
60
|
|
Schedule
7 Form of Mortgage
|
61
|
|
Schedule
8 Form of Deed of Covenant
|
62
|
|
Schedule
9 Form of Manager’s Undertaking
|
63
|
|
Schedule
10 Form of Charter Assignment
|
64
|
|
Schedule
11 Form of Swap Assignment
|
65
|
|
Schedule
12 Form of Account Pledge
|
66
|
|
THIS
AGREEMENT is dated
|
2007
and made BETWEEN:
|
|
(1)
|
GRASMERE
MARITIME LIMITED, ULLSWATER MARITIME LIMITED and
WINDERMERE MARITIME LIMITED as joint and several
Borrowers;
|
|
(2)
|
the
banks and financial institutions whose names and addresses are set
out in
Schedule 1 (the
“Banks”);
|
|
(3)
|
KfW,
a public law institution established under the laws of Germany whose
office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000, Xxxxxxxxx xx Xxxx,
Xxxxxxx
Xxxxxxxx of Germany, as arranger;
|
|
(4)
|
KfW,
a public law institution established under the laws of Germany whose
office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000, Xxxxxxxxx xx Xxxx,
Xxxxxxx
Xxxxxxxx of Germany, as swap bank;
|
|
(5)
|
KfW,
a public law institution established under the laws of Germany whose
office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000, Xxxxxxxxx xx Xxxx,
Xxxxxxx
Xxxxxxxx of Germany, as agent; and
|
|
(6)
|
KfW,
a public law institution established under the laws of Germany, whose
office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000, Xxxxxxxxx xx Xxxx,
Xxxxxxx
Xxxxxxxx of Germany, as security
trustee.
|
IT
IS AGREED as follows:
|
Purpose
and definitions
|
|
1.1
|
Purpose
|
This
Agreement sets out the terms and conditions upon and subject to which the Banks
agree, according to their several obligations, to make available to the
Borrowers, jointly and severally, in three (3) Advances, a loan of up to thirty
five million Dollars ($35,000,000) for the purpose of financing part of the
cost
of the purchase of the Ships.
|
1.2
|
Definitions
|
In
this
Agreement, unless the context otherwise requires:
“Account
Bank” means Fortis Bank (Nederland) N.V., whose office
is at Xxxxxxxxxx 00, X.X. Xxx 000, 0000 XX Xxxxxxxxx (xx of such other address
as may last have been notified to the other parties to this Agreement) or such
other bank as may be designated by the Agent as the Account Bank for the
purposes of this Agreement and includes its successors in title;
“Account
Pledge” means the pledge executed (or as the context may require) to be
executed by the Corporate Guarantor in favour of the Security Trustee (as
security trustee on behalf of the Creditors) in respect of the Earnings Account
in substantially the form set out in Schedule 12 or otherwise in a form and
substance acceptable to the Agent in its sole discretion;
“Advance”
means each borrowing of a proportion of the Commitment by the Borrowers or
(as
the context may require) the principal amount of such borrowing and
means:
|
|
(a)
|
in
relation to GRASMERE, the Grasmere
Advance;
|
|
|
(b)
|
in
relation to ULLSWATER, the Ullswater Advance;
or
|
|
|
(c)
|
in
relation to WINDERMERE, the Windermere
Advance,
|
and
“Advances” means all of them;
1
“Agency
Agreement” means the agency agreement executed or (as the context may
require) to be executed between the Agent and the Creditors in the agreed
form;
“Agent”
means KfW, whose office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000,
Xxxxxxxxx xx Xxxx, Xxxxxxx Xxxxxxxx of Germany (or of such other address as
may
last have been notified to the other parties to this Agreement pursuant to
clause 17.1.3) or such other person as may be appointed as agent to the
Creditors pursuant to the Agency Agreement (and includes its successors in
title);
“Arranger”
means KfW, whose office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000,
Xxxxxxxxx xx Xxxx, Xxxxxxx Xxxxxxxx of Germany (or such other address as may
last have been notified to the other parties of this Agreement pursuant to
clause 17.1.3) and includes its successors in title;
“Assignee”
has the meaning ascribed thereto in clause 15.3;
“Banking
Day” means a day on which dealings in deposits in Dollars are carried
on in the London Interbank Eurocurrency Market and (other than Saturday or
Sunday) on which banks are open for business in London, Frankfurt am Main,
Rotterdam and New York City (or any other relevant place of payment under clause
6);
“Banks”
means the banks and financial institutions listed in Schedule 1 and includes
their respective successors in title and Assignees and Substitutes and
“Bank” means any of them;
“Borrowed
Money” means Indebtedness in respect of (a) money borrowed or raised
and debit balances at banks, (b) any bond, note, loan stock, debenture or
similar debt instrument, (c) acceptance or documentary credit facilities,
(d) receivables sold or discounted (otherwise than on a non-recourse
basis), (e) deferred payments for assets or services acquired, (f) finance
leases and hire purchase contracts, (g) swaps, forward exchange contracts,
futures and other derivatives, (h) 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 (b) to (g) above and (i) guarantees
in respect of Indebtedness of any person falling within any of (a) to (h)
above;
“Borrower”
means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere
Borrower;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Borrower;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere
Borrower,
|
and
“Borrowers” means all of them;
“Borrowers'
Security Documents” means, at any relevant time, such of the Security
Documents as shall have been executed by any of the Borrowers at such
time;
“Borrowers’
Group” means the Borrowers and their Related Companies;
“Charter”
means in respect of a Ship any time or consecutive voyage charter with a
duration in excess of twelve (12) months entered into by a Borrower with a
charterer acceptable to the Agent;
“Charter
Assignment” means in respect of a Ship a specific assignment of the
Charters (as defined in the Corporate Guarantee) and any Charter in respect
of a
Ship executed or (as the context may require) to be executed by a Borrower
in
favour of the Agent (as security agent and trustee on behalf of the Creditors)
in substantially the form set out in Schedule 10;
2
“Classification”
means:
|
|
(a)
|
in
relation to the GRASMERE, the classification denomination allocated
to
this Ship by the Classification Society (with the approval of the
Agent)
at the time of its acquisition by the relevant
Borrower;
|
|
|
(b)
|
in
relation to the ULLSWATER, the classification denomination allocated
to
this Ship by the Classification Society (with the approval of the
Agent)
at the time of its acquisition by the relevant Borrower;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the classification denomination allocated
to
this Ship by the Classification Society (with the approval of the
Agent)
at the time of its acquisition by the relevant
Borrower,
|
with
the
Classification Society or such other classification as the Agent shall, at
the
request of a Borrower, have agreed in writing shall be treated as the
Classification in relation to such Borrower’s Ship for the purposes of the
relevant Ship Security Documents
“Classification
Society” means Nippon Kaiji Kyokai or such other classification society
which is a member of the International Association of Classification Societies
which the Agent shall, at the request of a Borrower, have agreed in writing
shall be treated as the Classification Society in relation to such Borrower's
Ship for the purposes of the relevant Ship Security Documents;
“Commitment”
means the amounts which the Banks have agreed to lend or make available to
the
Borrowers 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 a 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;
“Contract”
means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere
Contract;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Contract;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere
Contract,
|
and
“Contracts” means all of them;
“Contract
Price” means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere Contract
Price;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Contract Price;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere Contract
Price;
|
“Contribution”
means, in relation to each Bank, the principal amount of the Loan owing to
such
Bank at any relevant time;
“Corporate
Guarantee” means the corporate guarantee executed or (as the context
may require) to be executed by the Corporate Guarantor in favour of the Security
Trustee (as security agent and trustee on behalf of the Creditors) in the form
set out in Schedule 6;
“Corporate
Guarantor” means MC Shipping Inc. of 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
and includes its successors in title;
3
“Creditors”
means, together, the Arranger, the Agent, the Swap Bank, the Security Trustee
and the Banks and “Creditor” means any of them;
“Credit
Support Document” has the meaning given to that expression in Section
14 of the Master Swap Agreement and as set out in Part 4, paragraph (g) of
the
Schedule to the Master Swap Agreement;
“Credit
Support Provider” means any person defined as such in the Master Swap
Agreement pursuant to Section 14 of the Master Swap Agreement;
“Deed
of Covenant” means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere Deed of
Covenant;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Deed of Covenant;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere Deed of
Covenant,
|
and
“Deeds of Covenants” means all of them;”
“Default”
means any Event of Default or any event or circumstance with which the giving
of
notice or lapse of time or satisfaction of any other condition (or any
combination thereof) would constitute an Event of Default;
“Delivery
Date” means:
|
|
(a)
|
in
relation to the GRASMERE, the date on which the GRASMERE is delivered
to
the Grasmere Borrower in accordance with the Grasmere
Contract;
|
|
|
(b)
|
in
relation to the ULLSWATER, the date on which the ULLSWATER is delivered
to
the Ullswater Borrower in accordance with the Ullswater Contract;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the date on which the WINDERMERE is delivered
to the Windermere Borrower in accordance with the Windermere
Contract;
|
“DOC”
means a document of compliance issued to an Operator in accordance with rule
13
of the ISM 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 US dollar funds as may at the
relevant time be customary for the settlement of international banking
transactions denominated in US dollars);
“Drawdown
Date” means any date, being a Banking Day falling during the Drawdown
Period, on which an Advance is, or is to be, made;
“Drawdown
Notice” means, in relation to each Advance, a notice in substantially
the form of Schedule 2 in respect of such Advance;
“Drawdown
Period” means the period commencing on the date of this Agreement and
ending on the Termination Date or the period ending on such earlier date (if
any) on which (a) the aggregate amount of the Advances is equal to the
Commitment or (b) the Commitment is reduced to zero pursuant to clauses
4.4, 10.1, or 12;
“Earnings”
means, in relation to each Ship, all moneys whatsoever from time to time due
or
payable to the relevant Borrower during the Security Period arising out of
the
use or operation of such 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 relevant Borrower in the
event
of requisition of such Ship for hire, remuneration for salvage or towage
services, demurrage and detention moneys and damages for breach (or payments
for
variation or termination) of any charterparty or other contract for the
employment of such Ship and any sums recoverable under any loss of earnings
insurance;
4
“Earnings
Account” means an interest bearing Dollar account of the Corporate
Guarantor opened or (as the context may require) to be opened with the Account
Bank with account number 0255119062 with Account Reference MC Shipping-B and
includes any sub-accounts thereof and any other account designated in writing
by
the Agent to be an Earnings Account for the purposes of this
Agreement;
“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
Claim” means:
|
|
(a)
|
any
and all enforcement, clean-up, removal or other governmental or regulatory
action or order or claim instituted or made pursuant to any Environmental
Law or resulting from a Spill; or
|
|
|
(b)
|
any
claim made by any other person relating to a
Spill;
|
“Environmental
Incident” means any Spill:
|
|
(a)
|
from
any Fleet Vessel; or
|
|
|
(b)
|
from
any other vessel in circumstances
where:
|
|
|
(i)
|
any
Fleet Vessel or its owner, operator or manager may be liable for
Environmental Claims arising from the Spill (other than Environmental
Claims arising and fully satisfied before the date of this Agreement);
and/or
|
|
|
(ii)
|
any
Fleet Vessel may be arrested or attached in connection with any such
Environmental Claims;
|
“Environmental
Laws” means all laws, regulations and conventions concerning pollution
or protection of human health or the environment;
“Event
of Default” means any of the events or circumstances described in
clause 10.1;
“Flag
State” means the Commonwealth of the Bahamas or such other state or
territory designated in writing by the Agent, at the request of a Borrower,
as
being the “Flag State” of such Borrower’s Ship for the purposes
of the relevant Ship 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;
“GRASMERE”
means the 1997-built, 7,200 cbm LPG carrier “GRASMERE” with IMO number 9148609
owned on the date of this Agreement by the Grasmere Seller and registered on
the
Singapore flag and to be registered on its Delivery Date through the Registry
under the laws and flag of the Flag State;
5
“Grasmere
Advance” means an Advance of up to twelve million five hundred thousand
Dollars ($12,500,000) made or (as the context may require) to be made available
to the Borrowers for the purpose of financing part of the purchase price of
GRASMERE pursuant to the Grasmere Contract;
“Grasmere
Borrower” means Grasmere Maritime Limited of 00 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx and includes its successors in title;
“Grasmere
Contract” means the memorandum of agreement dated 12 June 2007 (as
amended by addendum No. 1 dated 18 June 2007) and made between the Grasmere
Borrower and the Grasmere Seller relating to the sale by the Grasmere Seller
and
the purchase by the Grasmere Borrower of the GRASMERE;
“Grasmere
Contract Price” means the purchase price under the Grasmere Contract,
being fourteen million four hundred thousand Dollars ($14,400,000) or such
lesser sum in Dollars as may be payable by the Grasmere Borrower to the Grasmere
Seller pursuant to the Grasmere Contract;
“Grasmere
Deed of Covenant” means the deed of covenant collateral to the Grasmere
Mortgage executed or (as the context may require) to be executed by the Grasmere
Borrower in favour of the Security Trustee (as security agent and trustee on
behalf of the Creditors) in substantially the form set out in Schedule
8;
“Grasmere
Management Agreement” means the agreement made or (as the context may
require) to be made between the Grasmere Borrower and the Manager in a form
previously approved by the Agent providing (inter alia) for the Manager to
manage the GRASMERE;
“Grasmere
Manager’s Undertaking” means the manager’s undertaking in respect of
the GRASMERE executed or (as the context may require) to be executed by the
Manager in favour of the Security Trustee (as security agent and trustee on
behalf of the Creditors) in substantially the form set out in Schedule
9;
“Grasmere
Mortgage” means the first priority Bahamas mortgage of the GRASMERE
executed or (as the context may require) to be executed by the Grasmere Borrower
in favour of the Security Trustee (as security agent and trustee on behalf
of
the Creditors) in substantially the form set out in Schedule 7;
“Grasmere
Seller” means Snow Shipping Pte Ltd. Of 000 Xxxxxxxxx Xxxx, #00-00 XXX
Xxxxxxxx, Xxxxxxxxx 000000, Singapore, and includes its successors in
title;
“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, in relation to any Advance or, as the case may be, the
Loan, each period for the calculation of interest in respect of such Advance
or
the Loan ascertained in accordance with clauses 3.2 and 3.3;
“ISM
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 Organisation and incorporated into the Safety
of Life at Sea Convention and includes any amendments or extensions thereto
and
any regulation issued pursuant thereto;
“ISPS
Code” means the International Ship and Port Facility Security Code
constituted pursuant to resolution A.924(22) of the International Maritime
Organization and incorporated into Safety of Life at Sea
Convention;
“ISSC”
means in respect of a Ship an International Ship Security Certificate issued
in
respect of such Ship pursuant to the ISPS Code;
6
“LIBOR”
means,
in
relation to a particular period:
|
|
(a)
|
the
rate per annum that appears on Reuters at or about 11.00 a.m. (London
time) two Banking Days before the commencement of that period for
deposits
in Dollars in an amount comparable with the relevant sum for a period
equivalent to such period for delivery on the first Banking Day of
such
period; or
|
|
|
(b)
|
if
no display rate is quoted on the Reuters Screen for Dollars, the
arithmetic mean (rounded upwards to the nearest one sixteenth of
one per
cent (1/16%)) of the rates per annum offered to the Banks by leading
banks
in the London Interbank Market at or about 11.00 a.m. London time
two
Banking Days before the commencement of that period for the offering
of
deposits in Dollars of an amount comparable with the relevant sum
at the
commencement of such period for a period comparable with such period
fixed
for its duration;
|
and,
for
the purposes of this definition, "Reuters" means the display designated as
Page
“LIBOR 01” on the Reuters Service (or other such page as may replace Page
01 on that service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for deposits in Dollars)
provided that if the Borrowers shall at any time enter into any Transaction(s)
under the Master Swap Agreement, LIBOR shall (during the period when any such
Transaction(s) are effective and for an amount equal to the notional amount
of
such Transaction(s)) be the rate for deposits in Dollars for a period equivalent
to such period at or about 11 a.m. on the second Banking Day before the first
day of such period as displayed on Reuters page ISDA (or such other page as
may
replace such page ISDA) on such system for the purposes of displaying
International Swap Dealers Association Interbank rates from London for deposits
in Dollars) provided that if on such date no such rate is so displayed, LIBOR
for such period shall be determined in accordance with the first paragraph
of
this definition excluding this proviso;
“Loan”
means the aggregate principal amount owing to the Banks under this Agreement
at
any relevant time;
“Majority
Banks” means that Bank or those Banks whose Contribution or the
aggregate of whose Contributions (as the case may be) is at any time equal
to or
greater than sixty-six and two thirds per cent. (66 ⅔%) of the
Loan;
“Management
Agreement” means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere Management
Agreement;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Management Agreement;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere Management
Agreement,
|
and
“Management Agreements” means all of them;
“Manager”
means Hanseatic Shipping Co. Ltd. of X.X. Xxx 00000, 0000 Xxxxxxxx, Xxxxxx
and
includes its successors in title and “Manager” means any of
them;
“Manager's
Undertaking” means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere Manager’s
Undertaking;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Manager’s Undertaking;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere Manager’s
Undertaking,
|
and
“Managers’ Undertakings” means all of them;
7
“Margin”
means zero point seven five per cent (0.75%) per annum;
“Master
Swap Agreement” means the agreement made or (as the context may
require) to be made between the Borrowers and the Swap Bank comprising an ISDA
Master Agreement and Schedule thereto in substantially the form set out in
Schedule 5 or in such other form and substance acceptable to the Agent in its
sole discretion and any Confirmations (as defined therein) supplemental thereto
with respect to this Agreement;
“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 (a) 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
(b) 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:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere
Mortgage;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Mortgage;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere
Mortgage,
|
and
“Mortgages” means all of them;
“Operator”
means any person who is from time to time during the Security Period concerned
in the operation of a Ship and falls within the definition of
“Company” set out in rule 1.1.2 of the ISM Code;
“Permitted
Encumbrance” means any Encumbrance in favour of the Creditors or any of
them created pursuant to the Security Documents and Permitted
Liens;
“Permitted
Liens” means any lien on a 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;
“Pollutant”
means and includes oil and its products, any other polluting, toxic or hazardous
substance whose release into the environment is regulated or penalised by
Environmental Laws;
“Registry”
means, in relation to a Ship, the offices of the Bahamas Maritime Authority
or
such other registrar, commissioner or representative of the Flag State who
is
duly authorised and empowered to register such Ship, the relevant Borrower's
title to such Ship and the relevant Mortgage under the laws and flag of the
Flag
State;
“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;
“Repayment
Dates” means, in respect of each Advance, the date falling six months
after the Drawdown Date relative to the first Advance and each of the dates
falling at three monthly intervals thereafter up to and including the date
falling one hundred and twenty (120) months after the Drawdown Date for such
first Advance;
8
“Security
Documents” means this Agreement, the Account Pledge, the Mortgages, the
Deeds of Covenants, any Charter Assignment, the Managers’ Undertakings, the
Corporate Guarantee, the Master Swap Agreement, the Swap Assignment and any
other documents as may have been or shall from time to time after the date
of
this Agreement be executed to guarantee and/or secure all or any part of the
Loan, interest thereon and other moneys from time to time owing by the Borrowers
pursuant to this Agreement (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 Borrowers, 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 Creditors);
“Security
Period” means the period commencing on the date of this Agreement and
terminating upon discharge of the security created by the Security Documents
by
payment of all moneys payable thereunder;
“Security
Requirement” means the amount in Dollars (as certified by the Agent
whose certificate shall, in the absence of manifest error, be conclusive and
binding on the Borrowers and the Banks) which is, for the period from the
Drawdown Date relative to the first Advance until the date thirty-six months
(36) after such Drawdown Date, one hundred and ten per cent. (110%) and at
all
other times, one hundred and twenty per cent (120%) of the Loan;
“Security
Trustee” means KfW whose office is at Xxxxxxxxxxxxxxxxxxx 0-0, X00000,
Xxxxxxxxx xx Xxxx, Xxxxxxx Xxxxxxxx of Germany or such other person who may
be
appointed security agent and trustee for the Creditors pursuant to the Agency
Agreement and includes its successors in title and assigns;
“Security
Value” means the amount in Dollars (as certified by the Agent whose
certificate shall, in the absence of manifest error, be conclusive and binding
on the Borrowers and the Creditors) which is, at any relevant time, the
aggregate of (a) the market value of the Ships as most recently determined
in
accordance with clause 8.2.2, (b) any cash collateral deposited with the
Agent or the Security Trustee or the Account Bank pursuant to clause 8.2.1
(subject to cash collateral being pledged to the Security Trustee in a manner
acceptable to the Security Trustee) and (c) the market value of any other
additional security for the time being actually provided to any of the Creditors
pursuant to clause 8.2;
“Seller”
means:
|
|
(a)
|
in
relation to the GRASMERE, the Grasmere
Seller;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Seller;
or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere
Seller;
|
“Ship”:
|
|
(a)
|
in
relation to the Grasmere Borrower and the Grasmere Advance, means
the
GRASMERE;
|
|
|
(b)
|
in
relation to the Ullswater Borrower and the Ullswater Advance, means
the
ULLSWATER; or
|
|
|
(c)
|
in
relation to the Windermere Borrower and the Windermere Advance, means
the
WINDERMERE,
|
and
“Ships” means all of them;
“Ship
Security Documents” means:
9
|
(a)
|
in
relation to the GRASMERE, the Grasmere Mortgage, the Grasmere Deed
of
Covenant, any Charter Assignment relative to the GRASMERE and the
Grasmere
Manager’s Undertaking;
|
|
|
(b)
|
in
relation to the ULLSWATER, the Ullswater Mortgage, the Ullswater
Deed of
Covenant, any Charter Assignment relative to the ULLSWATER and the
Ullswater Manager’s Undertaking; or
|
|
|
(c)
|
in
relation to the WINDERMERE, the Windermere Mortgage, the Windermere
Deed
of Covenant, any Charter Assignment relative to the WINDERMERE and
the
Windermere Manager’s Undertaking;
|
“SMC”
means a safety management certificate issued in respect of a Ship in accordance
with rule 13 of the ISM Code;
“Spill”
means any actual or threatened emission, spill, release or discharge of a
Pollutant into the environment;
“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;
“Substitute”
has the meaning ascribed thereto in clause 15.4;
“Substitute
Certificate” means a certificate in substantially the form set out in
Schedule 4 (or in such other form as the Agent and the Banks shall approve
or require);
“Swap
Assignment” means the security assignment executed or (as the context
may require) to be executed by the Borrowers in favour of the Security Trustee
(as security agent and trustee on behalf of the Creditors) in the form set
out
in Schedule 11;
“Swap
Bank” means KfW, whose office is at
Xxxxxxxxxxxxxxxxxxx 0-0, X00000, Xxxxxxxxx xx Xxxx, Xxxxxxx Xxxxxxxx of Germany
and includes its successors and assigns;
“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 30 September 2007 or such later date as the Agent may agree
in writing;
“Total
Loss” means, in relation to a Ship:
|
|
(a)
|
the
actual, constructive, compromised or arranged total loss of such
Ship;
or
|
|
|
(b)
|
the
Compulsory Acquisition of such Ship;
or
|
|
|
(c)
|
the
hijacking, theft, condemnation, capture, seizure, arrest, detention
or
confiscation of such Ship (other than where the same amounts to the
Compulsory Acquisition of such Ship) by any Government Entity, or
by
persons acting or purporting to act on behalf of any Government Entity,
unless such Ship be released and restored to the relevant Borrower
from
such hijacking, theft, condemnation, capture, seizure, arrest, detention
or confiscation within thirty (30) days after the occurrence
thereof;
|
“Transaction”
has the meaning ascribed to it in the Master Swap Agreement;
“ULLSWATER”
means the 1996-built, 7,200 cbm LPG carrier “ULLSWATER” owned on the date of
this Agreement by the Ullswater Seller and registered under the Singapore flag
and to be registered on its Delivery Date in the ownership of the Ullswater
Borrower through the Registry under the laws and flag of the Flag
State;
10
“Ullswater
Advance” means an Advance of up to eleven million, nine hundred
thousand Dollars ($11,900,000) made or (as the context may require) to be made
available to the Borrowers for the purpose of financing part of the purchase
price of the ULLSWATER by the Ullswater Borrower pursuant to the Ullswater
Contract;
“Ullswater
Borrower” means Ullswater Maritime Limited of 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx and includes its successors in title;
“Ullswater
Contract” means the memorandum of agreement dated 12 June 2007 (as
amended by an addendum No. 1 dated 18 June 2007) and made between the Ullswater
Seller and the Ullswater Borrower relating to the sale by the Ullswater Seller,
and the purchase by the Ullswater Borrower, of the ULLSWATER;
“Ullswater
Contract Price” means the purchase price under the Ullswater Contract,
being thirteen million nine hundred thousand Dollars ($13,900,000) or such
other
lesser sum in Dollars as may be payable by the Ullswater Borrower to the
Ullswater Seller pursuant to the Ullswater Contract;
“Ullswater
Deed of Covenant” means the deed of covenant collateral to the
Ullswater Mortgage executed or (as the context may require) to be executed
by
the Ullswater Borrower in favour of the Security Trustee (as security agent
and
trustee on behalf of the Creditors) in substantially the form set out in
Schedule 8;
“Ullswater
Management Agreement” means the agreement made or (as the context may
require) to be made between the Ullswater Borrower and the Manager in a form
previously approved in writing by the Agent providing (inter alia) for the
Manager to manage the ULLSWATER;
“Ullswater
Manager’s Undertaking” means the manager’s undertaking in respect of
the ULLSWATER executed or (as the context may require) to be executed by the
Manager in favour of the Security Trustee (as security agent and trustee on
behalf of the Creditors) in substantially the form set out in Schedule
9;
“Ullswater
Mortgage” means the first priority Bahamas mortgage of the ULLSWATER
executed or (as the context may require) to be executed by the Ullswater
Borrower in favour of the Security Trustee (as security agent and trustee on
behalf of the Creditors) in substantially the form set out in Schedule
7;
“Ullswater
Seller” means Ullswater Shipping Pte. Ltd. of Singapore, and includes
its successors in title;
“Underlying
Documents” means together, the Contracts, any Charters and the
Management Agreements;
“WINDERMERE”
means the 1995-built, 6,550 cbm LPG carrier “WINDERMERE” owned on the date of
this Agreement by the Windermere Seller and registered under the Singapore
flag
and to be registered on its Delivery Date in the ownership of the Windermere
Borrower through the Registry under the laws and flag of the Flag
State;
“Windermere
Advance” means an Advance of up to ten million six hundred thousand
Dollars ($10,600,000) made or (as the context may require) to be made available
to the Borrowers for the purpose of financing part of the purchase price of
the
WINDERMERE by the Windermere Borrower pursuant to the Windermere
Contract;
“Windermere
Borrower” means Windermere Maritime Limited of 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx and includes its successors in title;
11
“Windermere
Contract” means the memorandum of agreement dated 12 June 2007 (as
amended by an addendum No. 1 dated 18 June 2007) and made between the Windermere
Seller and the Windermere Borrower relating to the sale by the Windermere
Seller, and the purchase by the Windermere Borrower, of the
WINDERMERE;
“Windermere
Contract Price” means the purchase price under the Windermere Contract,
being twelve million, four hundred thousand Dollars ($12,400,000) or such other
lesser sum in Dollars as may be payable by the Windermere Borrower to the
Windermere Seller pursuant to the Windermere Contract;
“Windermere
Deed of Covenant” means the deed of covenant collateral to the
Windermere Mortgage executed or ( as the context may require) to be executed
by
the Windermere Borrower in favour of the Security Trustee (as security agent
and
trustee on behalf of the Creditors) in substantially the form set out in
Schedule 8;
“Windermere
Management Agreement” means the agreement made or (as the context may
require) to be made between the Windermere Borrower and the Manager in a form
previously approved in writing by the Agent providing (inter alia) for the
Manager to manage the WINDERMERE;
“Windermere
Manager’s Undertaking” means the manager’s undertaking in respect of
the WINDERMERE executed or (as the context may require) to be executed by the
Manager in favour of the Agent (as security agent and trustee on behalf of
the
Creditors) in substantially the form set out in Schedule 9;
“Windermere
Mortgage” means the first priority Bahamas mortgage of the WINDERMERE
executed or (as the context may require) to be executed by the Windermere
Borrower in favour of the Security Trustee (as security agent and trustee on
behalf of the Creditors) in substantially the form set out in Schedule 7;
and
“Windermere
Seller” means Windermere Shipping Pte. Ltd. of Singapore, and includes
its successors in title.
|
1.3
|
Headings
|
Clause headings
and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement.
|
1.4
|
Construction
of certain terms
|
In
this
Agreement, unless the context otherwise requires:
|
1.4.1
|
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;
|
|
1.4.2
|
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;
|
|
1.4.3
|
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;
|
|
1.4.4
|
words
importing the plural shall include the singular and vice
versa;
|
|
1.4.5
|
references
to a time of day are to London
time;
|
12
|
1.4.6
|
references
to a person shall be construed as references to an individual, firm,
company, corporation, unincorporated body of persons or any Government
Entity;
|
|
1.4.7
|
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
|
|
1.4.8
|
references
to any enactment shall be deemed to include references to such enactment
as re-enacted, amended or extended.
|
|
1.5
|
Agreed
forms
|
In
this
Agreement, any document expressed to be “in the agreed form”
means a document in a form agreed by (and for the purposes
of identification
signed by or on behalf of) the Borrowers and the Banks or (in the case of any
of
the other Security Documents) a document in the form actually executed by both
the relevant Security Party or relevant Security Parties and the Security
Trustee, the Agent and/or the Banks and/or the Swap Bank.
|
1.6
|
Third
party rights
|
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.
|
1.7
|
Effectiveness
of Majority Banks decision
|
Where
this Agreement provides for any matter to be determined by reference to the
opinion of the Majority Banks or to be subject to the consent or request of
the
Majority Banks or for any action to be taken on the instructions of the Majority
Banks, such opinion, consent, request or instructions shall (as between the
Banks and the Agent) only be regarded as having been validly given or issued
by
the Majority Banks if all the Banks and the Agent shall have received prior
notice of the matter on which such opinion, consent, request or instructions
are
required to be obtained and a majority of the Banks and the Agent shall have
given or issued such opinion, consent, request or instructions.
|
2
|
The
Commitment and the
Advances
|
|
2.1
|
Agreement
to lend
|
The
Banks, relying upon each of the representations and warranties in clause 7,
agree to lend to the Borrowers, jointly and severally, upon and subject to
clause 2.5 and other terms of this Agreement in three (3) Advances upon and
subject to the terms of this Agreement the principal sum of up to thirty five
million Dollars ($35,000,000). The obligation of each Bank under this
Agreement shall be to contribute that proportion of each Advance which, as
at
the Drawdown Date of such Advance, its Commitment bears to the aggregate
Commitment of all of the Banks.
|
2.2
|
Obligations
of Banks several
|
The
obligations of the Banks under this Agreement are several; the failure of any
Bank to perform such obligations shall not relieve any other Bank, the Security
Trustee the Agent or the Borrowers or any of them of any of their respective
obligations or liabilities under this Agreement nor shall the Agent or the
Security Trustee be responsible for the obligations of any Bank (except for
its
own obligations, if any, as a Bank) nor shall any Bank be responsible for the
obligations of any other Bank under this Agreement.
|
2.3
|
Interests
of Banks several
|
Notwithstanding
any other term of this Agreement the interests of the Agent, the Security
Trustee and the Banks are several and the amount due to the Agent, the Security
Trustee (for its own account) and to each Bank is a separate and independent
debt. The Agent, the Security Trustee and the Banks shall have the
right to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for the Agent or the Security Trustee or any Bank (as
the
case may be) to be joined as an additional party in any proceedings for this
purpose.
13
|
2.4
|
Drawdown
|
Subject
to the terms and conditions of this Agreement, each Advance shall be made to
the
Borrowers on the relevant Drawdown Date following receipt by the Agent from
the
Borrowers of an original Drawdown Notice not later than 10:00 a.m. on the third
Banking Day before the date, which shall be a Banking Day falling within the
Drawdown Period, on which the Borrowers propose such Advance is
made. A Drawdown Notice shall be effective on actual receipt by the
Agent and, once given, shall, subject as provided in clause 3.6.1, be
irrevocable.
|
2.5
|
Timing
and limitation of Advances
|
|
2.5.1
|
Subject
to the other provisions of this clause 2.5, the amount of each Advance
shall be for such amount as is specified in the Drawdown Notice for
that
Advance.
|
|
2.5.2
|
Each
Advance shall be made in accordance with clause 6.2 and the amount of
each Advance shall be as follows:
|
|
|
(a)
|
the
amount of the Grasmere Advance shall be up to twelve million five
hundred
thousand Dollars ($12,500,000);
|
|
|
(b)
|
the
amount of the Ullswater Advance shall be up to eleven million, nine
hundred thousand Dollars ($11,900,000);
and
|
|
|
(c)
|
the
amount of the Windermere Advance shall be up to ten million, six
hundred
thousand Dollars ($10,600,000).
|
|
2.6
|
Availability
|
Upon
receipt of a Drawdown Notice in respect of an Advance complying with the terms
of this Agreement, the Agent shall promptly notify each Bank and, subject to
the
provisions of clause 9, each Bank shall make available to the Agent its
portion of the relevant Advance for payment by the Agent in accordance with
clause 6.2. The Borrowers acknowledge that payment of the
Grasmere Advance to the Grasmere Seller or the Ullswater Advance to the
Ullswater Seller or the Windermere Advance to the Windermere Seller in
accordance with clause 6.2 shall satisfy the obligation of the Banks to lend
that Advance to the Borrowers under this Agreement.
|
2.7
|
Termination
of Commitment
|
Any
part
of the Commitment which remains undrawn and uncancelled by the Termination
Date
shall no longer be available to the Borrowers pursuant to this Agreement and
the
Banks shall have no further obligations to the Borrowers in respect of that
undrawn part of the relevant Advance.
|
2.8
|
Application
of proceeds
|
Without
prejudice to the Borrowers’ obligations under clause 8.1.3, the Banks shall
have, no further responsibility for the application of the proceeds of the
Loan
or any part thereof by the Borrowers.
|
3
|
Interest
and Interest Periods
|
|
3.1
|
Normal
interest rate
|
Subject
to the Master Swap Agreement, the Borrowers shall pay interest on each Advance
in respect of each Interest Period relating thereto on each Interest Payment
Date (or, in the case of Interest Periods of more than three (3) months, by
instalments, the first instalment 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 Agent to be the aggregate of (a) the Margin, and
(b) LIBOR for such Interest Period.
14
|
3.2
|
Selection
of Interest Periods
|
Subject
to the Master Swap Agreement, the Borrowers may by notice received by the Agent
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
three, six or twelve months, or such other period as the Borrowers and the
Agent
may agree provided always that if on any date upon which an Interest
Period falls to be selected by the Borrowers pursuant to this clause 3.2 a
Transaction or Transactions (which is/are effective or which shall become
effective during the relevant Interest Period) shall have been entered into
between the Bank and the Borrowers pursuant to the Master Swap Agreement LIBOR
shall during the period of any such Transaction(s) and for an amount equal
to
the notional amount of such Transaction(s) be determined by reference to the
rate for deposits in Dollars displayed on Reuters page ISDA in accordance with
the proviso to the definition of LIBOR and, for the avoidance of doubt, LIBOR
for that Advance or, as the case may be, part of the Loan which exceeds the
notional amount of the Transaction(s) shall be determined by reference to the
rate for deposits in Dollars referred to in the definition of LIBOR but
excluding the proviso to such definition.
|
3.3
|
Determination
of Interest Periods
|
Every
Interest Period shall be of the duration specified by the Borrowers pursuant
to
clause 3.2 but so that:
|
3.3.1
|
the
initial Interest Period in respect of each Advance shall commence
on the
Drawdown Date of such Advance and each subsequent Interest Period
for such
Advance shall commence on the last day of the previous Interest Period
for
such Advance;
|
|
3.3.2
|
the
initial Interest Period in respect of each Advance after the first
Advance
shall end on the same day as the then current Interest Period for
the
Loan;
|
|
3.3.3
|
if
any Interest Period for an Advance would otherwise overrun a Repayment
Date for such Advance, then, in the case of the last Repayment Date
for
such Advance, such Interest Period shall end on such Repayment Date,
and
in the case of any other Repayment Date or Repayment Dates, the relevant
Advance shall be divided into parts so that there is one part in
the
amount of the repayment instalment due on each Repayment Date for
such
Advance 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 relevant Advance having an Interest Period ascertained
in accordance with clause 3.2 and the other provisions of this
clause 3.3;
|
|
3.3.4
|
if
the Borrowers fail 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;
and
|
|
3.3.5
|
for
the avoidance of doubt, during the currency of any Transaction, Interest
Periods in respect of each Advance or, as the case may be, the Loan
shall
coincide with the payment dates set out in such Transaction and the
rate
of interest shall coincide with the fixed rate of interest determined
in
accordance with such Transaction.
|
|
3.4
|
Default
interest
|
If
the
Borrowers fail 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 Borrowers shall pay interest on such sum on demand
from
the due date up to the date of actual payment (as well after as before judgment)
at a rate determined by the Agent 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
three (3) months as selected by the Agent 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 Agent) 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 Agent 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 Agent under clause 10.2.2 or a prepayment pursuant to
clauses 4.2, 4.4, 8.2.1(a) or 12.1, on a date other than an Interest Payment
Date relating thereto, the first such period selected by the Agent 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 Agent is unable to determine a
rate in accordance with the foregoing provisions of this clause 3.4, each
Bank shall promptly notify the Agent of the cost of funds to such Bank and
interest on any sum not paid on its due date for payment shall be calculated
at
a rate determined by the Agent to be two per cent (2%) per annum above the
aggregate of the Margin and the cost of funds to such Bank.
15
|
3.5
|
Notification
of Interest Periods and interest
rate
|
The
Agent
shall notify the Borrowers and the Banks promptly of the duration of each
Interest Period and of each rate of interest (or, as the case may be default
interest) determined by it under this clause 3.
|
3.6
|
Market
disruption;
non-availability
|
|
3.6.1
|
If
and whenever, at any time prior to the commencement of any Interest
Period
the Agent shall have determined (which determination shall, in the
absence
of manifest error, be conclusive):
|
|
|
(a)
|
that
adequate and fair means do not exist for ascertaining LIBOR during
such
Interest Period; or
|
|
|
(b)
|
the
Agent shall have received notification from any of the Banks, that
deposits in Dollars are not available to such Banks in the London
Interbank Market in the ordinary course of business in sufficient
amounts
to fund the Loan or their Contributions for such Interest
Period,
|
the
Agent
shall forthwith give notice (a “Determination Notice”) thereof
to the Borrowers and to each of the Banks. 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 Borrowers by the Agent.
|
3.6.2
|
During
the period of ten days after any Determination Notice has been given
by
the Agent under clause 3.6.1, each Bank shall certify an alternative
basis
(the “Substitute Basis”) for maintaining its
Contribution. The Substitute Basis may include alternative
interest periods, alternative currencies or alternative rates of
interest
but shall include a margin above the cost of funds, including Additional
Cost, if any, to such Bank equivalent to the Margin. The
Substitute Basis so certified shall be binding upon the Borrowers,
and
shall take effect in accordance with its terms from the date specified
in
the Determination Notice until such time as the Agent notifies the
Borrowers that none of the circumstances specified in clause 3.6.1
continues to exist whereupon the normal interest rate fixing provisions
of
this Agreement shall apply.
|
|
4
|
Repayment
and prepayment
|
|
4.1
|
Repayment
|
|
4.1.1
|
Grasmere
Advance
|
Subject
to the provisions of this Agreement the Borrowers shall repay the Grasmere
Advance by thirty-nine (39) instalments, one such instalment to be repaid on
each of the Repayment Dates for such Advance and the amount of each instalment
(other than the thirty-ninth and final instalment) shall be two hundred and
twelve thousand, eight hundred and two Dollars ($212,802) and the amount of
the
final instalment shall be four million four hundred and thirteen thousand,
five
hundred and twenty-four Dollars ($4,413,524) (constituting a repayment
instalment of two hundred and twelve thousand, eight hundred and two Dollars
($212,802) and a balloon payment of four million two hundred thousand seven
hundred and twenty-two Dollars ($4,200,722)). If the Grasmere Advance
is not drawn in full, the amount of each repayment instalment shall be reduced
proportionately. No amount repaid may be reborrowed.
16
|
4.1.2
|
Ullswater
Advance
|
Subject
to the provisions of this Agreement the Borrowers shall repay the Ullswater
Advance by thirty-nine (39) instalments, one such instalment to be repaid on
each of the Repayment Dates for such Advance and the amount of each instalment
(other than the thirty-ninth and final instalment) shall be two hundred and
two
thousand five hundred and eighty-eight Dollars ($202,588) and the amount of
the
final instalment shall be four million two hundred and one thousand six hundred
and fifty six Dollars ($4,201,656) (constituting a repayment
instalment of two hundred and two thousand five hundred and eighty-eight Dollars
($202,588) and a balloon payment of three million nine hundred and ninety-nine
thousand and sixty-eight Dollars ($3,999,068)). If the Ullswater
Advance is not drawn in full, the amount of each repayment instalment shall
be
reduced proportionately. No amount repaid may be
reborrowed.
|
4.1.3
|
Windermere
Advance
|
Subject
to the provisions of this Agreement the Borrowers shall repay the Windermere
Advance by thirty-nine (39) instalments, one such instalment to be repaid on
each of the Repayment Dates for such Advance and the amount of each instalment
(other than the thirty-ninth and final instalment) shall be one hundred and
eighty thousand four hundred and fifty-six Dollars ($180,456) and the amount
of
the final instalment shall be three million seven hundred and forty two thousand
six hundred and seventy-two Dollars ($3,742,672) (constituting a repayment
instalment of one hundred and eighty thousand four hundred and fifty-six Dollars
($180,456) and a balloon payment of three million five hundred and sixty two
thousand two hundred and sixteen Dollars ($3,562,216)). If the
Windermere Advance is not drawn in full, the amount of each repayment instalment
shall be reduced proportionately. No amount repaid may be
reborrowed.
|
4.2
|
Voluntary
prepayment
|
The
Borrowers may prepay the Loan in whole or part (being one million Dollars
($1,000,000) or any larger sum which is an integral multiple of one million
Dollars ($1,000,000) on any Interest Payment Date relating to the part of the
Loan to be repaid without premium or penalty
|
4.3
|
Master
Swap Agreement, repayments and
prepayments
|
|
4.3.1
|
Notwithstanding
any provision of the Master Swap Agreement to the contrary, in the
case of
a prepayment of all or part of the Loan (including, without limit,
upon a
Total Loss in accordance with clause 4.4) then subject to clause
4.3.2 the Swap Bank shall be entitled but not obliged (and, where
relevant, may do so without the consent of the Borrowers, where it
would
otherwise be required or necessary under the Master Swap Agreement)
to
amend, re-book, supplement, cancel, close out, net out, terminate,
liquidate, transfer or assign all or any part of the rights, benefits
and
obligations created by any Transaction and/or the Master Swap Agreement
and/or to obtain or re-establish any hedge or related trading position
to
the extent any outstanding exposure is no longer wholly matched with
or
linked to all or part of the Loan in such manner and with such person
as
the Swap Bank may reasonably believe appropriate and both the Swap
Bank’s
and the Borrowers’ continuing obligations under any Transaction and/or the
Master Swap Agreement shall, unless agreed otherwise by the Swap
Bank, be
calculated so far as the Swap Bank considers it practicable by reference
to the amended repayment schedule for the Loan taking into account
the fact that less than the full amount of the Loan remains
outstanding.
|
|
4.3.2
|
If
less than the full amount of the Loan remains outstanding, following
a
prepayment under this Agreement and the Swap Bank in its absolute
discretion agrees, following a written request of the Borrowers,
that the
Borrowers may be permitted to maintain all or part of a Transaction
in an
amount not wholly matched with or linked to all or part of the Loan,
the
Borrowers shall within ten days of being notified by or on behalf
of the
Swap Bank of such requirement, provide the Agent (as security agent
and
trustee) with, or procure the provision to the Agent of, such additional
security as shall in the reasonable opinion of the Swap Bank be adequate
to secure the performance of such Transaction, which additional security
shall take such form, be constituted by such documentation and be
entered
into between such parties, as the Swap Bank in its absolute discretion
may
approve or require, and each document comprising such additional
security
shall constitute a Credit Support
Document.
|
17
|
4.3.3
|
The
Borrowers shall on the first written demand of the Swap Bank indemnify
the
Swap Bank and the Agent in respect of all losses, costs and expenses
(including, but not limited to, legal costs and expenses) properly
incurred or sustained by the Swap Bank and/or the Agent as a consequence
of or in relation to the effecting of any matter or transactions
referred
to in this clause 4.3. The Swap Bank shall account to the Borrowers
for any benefit resulting as a consequence of, or in relation to
the
effecting of any matter or transaction referred to in this
clause 4.3.
|
|
4.3.4
|
Notwithstanding
any provisions of the Master Swap Agreement to the contrary, if for
any
reason a Transaction has been entered into but the Loan is not drawn
down
under this Agreement then, subject to clause 4.3.5, the Swap Bank
shall be
entitled but not obliged (and, where relevant, may do so without
the
consent of the Borrowers where it would otherwise be required whether
under the Master Swap Agreement or otherwise) to amend, re-book,
supplement, cancel, close out, net out, terminate, liquidate, transfer
or
assign all or any part of the rights, benefits and obligations created
by
such Transaction(s) and/or the Master Swap Agreement and/or to obtain
or
re-establish any hedge or related trading position in any manner
and with
any person the Swap Bank in its absolute discretion may
determine.
|
|
4.3.5
|
If
a Transaction has been entered into but the Loan is not drawn down
under
this Agreement and the Swap Bank in its absolute discretion agrees,
following a written request of the Borrowers, that the Borrowers
may be
permitted to maintain all or part of a Transaction, the Borrower
shall
within ten days of being notified by or on behalf of the Swap Bank
of such
requirement, provide the Agent (as security agent and trustee) with,
or
procure the provision to the Agent of, such additional security as
shall
in the opinion of the Swap Bank be adequate to secure the performance
of
such Transaction, which additional security shall take such form,
be
constituted by such documentation and be entered into between such
parties, as the Swap Bank in its absolute discretion may approve
or
require, and each document comprising such additional security shall
constitute a Credit Support Document for the purposes of the Master
Swap
Agreement and/or otherwise.
|
|
4.3.6
|
Without
prejudice to or limitation of the obligations of the Borrowers under
clause 4.3.3, in the event that the Swap Bank exercises any of its
rights under clauses 4.3.1, 4.3.2, 4.3.4, or 4.3.5 and such exercise
results in all or part of a Transaction being terminated such Transaction
or the part thereof terminated (which shall for the purposes hereof
be
treated as a separate Transaction) in each case shall be treated
under the
Master Swap Agreement in the same manner as if it were a Terminated
Transaction (as defined in Section 14 of the Master Swap Agreement)
pursuant to an Event of Default (as so defined in that Section 14) by
the Borrowers and, accordingly, the Swap Bank shall be permitted
to
recover from the Borrowers a payment for early termination calculated
in
accordance with the provisions of Section 6(e)(i) of the Master Swap
Agreement in respect of such
Transaction.
|
|
4.4
|
Prepayment
on Total Loss and
sale
|
|
4.4.1
|
On
any of the Ships becoming a Total Loss or being involved in an incident
which in the opinion of the Banks may result in any of the Ships
being
subsequently determined to be a Total Loss, or on any Ship being
sold
prior to drawdown of the Advance for such Ship, the obligation of
the
Banks to make that Advance shall immediately cease and the Commitment
in
respect of that Advance shall be reduced to
zero.
|
|
4.4.2
|
On
the date ninety (90) days after that on which such Ship became a
Total
Loss or, if earlier, on the date upon which the insurance proceeds
in
respect of such Total Loss are or Requisition Compensation is received
by
the relevant Borrower (or the Security Trustee and/or the other Creditors
pursuant to the Ship Security Documents), or in the case of a sale
of a
Ship immediately on the completion of the sale of such Ship, the
Borrowers
shall prepay the Advance attributable to such Ship and such further
amount
(if any) as shall be necessary to ensure that the provisions of clause
8.2
remain fully satisfied and shall apply the remaining insurance proceeds
or
Requisition Compensation or sale proceeds in payment to the Earnings
Account.
|
18
|
4.4.3
|
For
the purpose of this Agreement, a Total Loss shall be deemed to have
occurred:
|
|
|
(a)
|
in
the case of an actual total loss, on the actual date and at the time
such
Ship was lost or, if such date is not known, on the date on which
such
Ship was last reported;
|
|
(b)
|
in
the case of a constructive total loss, upon the date and at the time
notice of abandonment of the Ship is given to the insurers of such
Ship
for the time being (provided a claim for Total Loss is admitted by
such
insurers) or, if such insurers do not forthwith accept such a claim,
at
the date and at the time at which either a total loss is subsequently
admitted by the insurers or a total loss is subsequently adjudged
by a
competent court of law or arbitration tribunal to have
occurred;
|
|
|
(c)
|
in
the case of a compromised or arranged total loss, on the date upon
which a
binding agreement as to such compromised or arranged total loss has
been
entered into by the insurers of such
Ship;
|
|
|
(d)
|
in
the case of Compulsory Acquisition, on the date upon which the relevant
requisition of title or other compulsory acquisition occurs;
and
|
|
|
(e)
|
in
the case of hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of a Ship (other than where the same amounts
to
Compulsory Acquisition of such Ship) by any Government Entity, or
by
persons purporting to act on behalf of any Government Entity, which
deprives the relevant Borrower of the use of such Ship for more than
thirty (30) 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.
|
|
4.5
|
Amounts
payable on prepayment
|
Any
prepayment of all or part of the Loan under this Agreement shall be made
together with (a) accrued interest on the amount to be prepaid to the date
of
such prepayment, (b) any additional amount payable under clauses 6.7 or 12.2
and
(c) all other sums payable by the Borrowers to Agent and/or the other Creditors
under this Agreement or any of the other Security Documents including, without
limitation, any accrued commitment commission payable under clause 5.1 and
any
amounts payable under clause 11.
|
4.6
|
Notice
of prepayment; reduction of repayment
instalments
|
|
4.6.1
|
No
prepayment may be effected under clause 4.2 unless the Borrowers
shall
have given the Banks at least fourteen (14) days’ notice of their
intention to make such prepayment. Every notice of prepayment
shall be effective only on actual receipt by the Banks, shall be
irrevocable, shall specify the amount to be prepaid and shall oblige
the
Borrowers to make such prepayment on the date specified. No amount
prepaid
may be reborrowed. Any amount prepaid pursuant to clauses 4.2 and
8.2.1(a)
shall be applied pro rata as between the relevant Advances and amounts
repaid under clause 4.4 shall be applied first in prepayment of the
Advance in respect of the Ship that shall have been sold or become
a Total
Loss and second on a pro rata basis as between the remaining Advances
all
such prepayments shall be applied in reducing the repayment instalments
in
inverse order of their due dates for
payment.
|
|
4.6.2
|
The
Borrowers may not prepay the Loan or any part thereof save as expressly
provided in this Agreement.
|
19
|
5
|
Fees,
commitment commission and
expenses
|
|
5.1
|
Fees
|
The
Borrowers shall pay to the Agent:
|
5.1.1
|
for
the benefit of the Agent, a management fee payable on the earlier
of (i)
the date of this Agreement or (ii) 1 August 2007 in the amount of
one
hundred and five thousand Dollars ($105,000);
and
|
|
5.1.2
|
if
the Loan is not drawndown in full by 31 August 2007, a commitment
fee, for
the benefit of the Agent (for distribution to the Banks) payable
on the
Termination Date or, if earlier, on the Drawdown Date for the final
Advance computed from 31 August 2007 at the rate of zero point three
percent (0.30%) per annum on the daily undrawn amount of the Commitment.
|
The
fee
referred to in clause 5.1.1 and the commitment fee referred to in clause 5.1.2
shall be non-refundable and shall be payable by the Borrowers to the Agent,
whether or not any part of the Commitment is ever advanced.
|
5.2
|
Expenses
|
The
Borrowers shall pay to the Agent on a full indemnity basis on demand all
reasonable expenses (including legal, printing and out-of-pocket expenses)
incurred by the Creditors or any of them:
|
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 the syndication of the Loan;
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
judgment).
|
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
Borrowers shall pay all stamp, documentary, registration or other like duties
or
taxes (including any duties or taxes payable by the Agent, the Security Trustee
and/or the Banks) imposed on or in connection with any of the Underlying
Documents, the Security Documents or the Loan and shall indemnify the Creditors
or any of them against any liability arising by reason of any delay or omission
by the Borrowers to pay such duties or taxes.
|
6
|
Payments
and taxes; accounts and
calculations
|
|
6.1
|
No
set-off or counterclaim
|
The
Borrowers acknowledge that in performing their obligations under this Agreement,
the Banks will be incurring liabilities to third parties in relation to the
funding of amounts to the Borrowers, such liabilities matching the liabilities
of the Borrowers to the Banks and that it is reasonable for the Banks to be
entitled to receive payments from the Borrowers gross on the due date in order
that each of the Banks is put in a position to perform its matching obligations
to the relevant third parties. Accordingly, all payments to be made
by the Borrowers 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 at such bank in such place as the Agent may from
time to time specify for this purpose. Save as otherwise provided in
this Agreement or any relevant Security Documents such payments shall be for
the
account of all Banks and the Agent shall distribute such payments in like funds
as are received by the Agent to the Banks rateably in accordance with their
respective Commitment (prior to the first drawdown) or Contribution (following
the first drawdown).
20
|
6.2
|
Payment
by the
Banks
|
All
sums
to be advanced by the Banks to the Borrowers under this Agreement shall be
remitted in Dollars on the Drawdown Date for the relevant Advance to the account
of the Agent at such bank as the Agent may have notified to the Banks and shall
be paid by the Agent on such date in like funds as are received by the Agent
to
the account specified in the Drawdown Notice for such Advance.
|
6.3
|
Agent
may assume receipt
|
Where
any
sum is to be paid under any of the Security Documents to the Agent for the
account of another person, the Agent may assume that the payment will be made
when due and the Agent may (but shall not be obliged to) make such sum available
to the person so entitled. If it proves to be the case that such
payment was not made to the Agent, then the person to whom such sum was so
made
available shall on request refund such sum to the Agent together with interest
thereon sufficient to compensate the Agent for the cost of making available
such
sum up to the date of such repayment and the person by whom such sum was payable
shall indemnify the Agent for any and all loss or expense which the Agent may
sustain or incur as a consequence of such sum not having been paid on its due
date. If such a sum is so paid to the Agent by the Borrowers, the
Borrowers may assume that the Agent has paid such sum to the other person for
whose account it was paid to the Agent.
|
6.4
|
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.
|
6.5
|
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) days year.
|
6.6
|
Certificates
conclusive
|
Any
certificate or determination of the Agent 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
Borrowers and on the Banks.
|
6.7
|
Grossing-up
for Taxes
|
If
at any
time the Borrowers or any of them are required to make any deduction or
withholding in respect of Taxes from any payment due under any of the Security
Documents for the account of any Bank or the Agent or the Security Trustee
(or
if the Agent is required to make any deduction or withholding from a payment
to
a Bank or the Security Trustee or withholding in respect of Taxes from any
payment due under any of the Security Documents), the sum due from the Borrowers
or any of them in respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction or withholding,
each Bank and the Agent or the Security Trustee 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 Borrowers shall
indemnify each Bank and the Agent and the Security Trustee against any losses
or
costs incurred by it by reason of any failure of the Borrowers or any of them
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 Borrowers shall
promptly deliver to the Agent any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any deduction
or
withholding as aforesaid.
21
|
6.8
|
Claw-back
of Tax benefit
|
If,
following any such deduction or withholding as is referred to in clause 6.7
from
any payment by the Borrowers (or any of them), the Banks, the Agent or the
Security Trustee shall receive or be granted a credit against or remission
for
any Taxes payable by it, the Banks, the Agent or the Security Trustee (as the
case may be) shall, subject to the Borrowers (or any of them) having made any
increased payment in accordance with clause 6.6 and to the extent that the
Banks, the Agent or the Security Trustee (as the case may be) can do so without
prejudicing the retention of the amount of such credit or remission and without
prejudice to the right of the Banks, the Agent or the Security Trustee to obtain
any other relief or allowance which may be available to it, reimburse the
Borrowers (or any of them) with such amounts as the Banks, the Agent or the
Security Trustee shall in its absolute discretion certify to be the proportion
of such credit or remission as will leave the Banks, the Agent or the Security
Trustee (after such reimbursement) in no worse position that it would have
been
in had there been no such deduction or withholding from the payment by the
Borrowers (or any of them) as aforesaid. Such reimbursement shall be
made forthwith upon the Banks, the Agent or the Security Trustee certifying
that
the amount of such credit or remission has been received by
it. Nothing contained in this Agreement shall oblige the Banks, the
Agent or the Security Trustee to rearrange its tax affairs or to disclose any
information regarding its tax affairs and computations. Without prejudice to
the
generality of the foregoing, the Borrowers (or any of them) shall not, by virtue
of this clause 6.8, be entitled to enquire about the Bank’s, the Agent’s or the
Security Trustee’s (as the case may be) tax affairs.
|
6.9
|
Loan
account
|
Each
Bank
shall maintain, in accordance with its usual practice, an account evidencing
the
amounts from time to time lent by, owing to and paid to it under the Security
Documents. The Agent shall maintain a control account (which in
relation to the Mortgages shall be the “account current” referred to in the
Mortgages) showing the Loan and other sums owing by the Borrowers under the
Security Documents and all payments in respect thereof being made from time
to
time. The control account shall, in the absence of manifest error, be
conclusive as to the amount from time to time owing by the Borrowers under
the
Security Documents.
|
7
|
Representations
and warranties
|
|
7.1
|
Continuing
representations and
warranties
|
The
Borrowers jointly and severally represent and warrant to each Creditor
that:
|
7.1.1
|
Due
incorporation
|
each
of
the Borrowers and each of the other Security Parties are duly incorporated
and
validly existing in good standing, in the case of the Borrowers and the
Corporate Guarantor, under the laws of the Republic of Liberia as a Liberian
corporation, and in the case of each of the other Security Parties, under the
laws of their respective countries of incorporation as companies with limited
liability, and have power to carry on their respective businesses as they are
now being conducted and to own their respective property and other
assets;
|
7.1.2
|
Corporate
power
|
22
each
of
the Borrowers has power to execute, deliver and perform its obligations under
the Underlying Documents and the relevant Borrowers' Security
Documents to which it is or is to be a party 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 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 any Borrower to borrow will be exceeded as a
result of borrowing the Loan;
|
7.1.3
|
Binding
obligations
|
the
Underlying Documents and the Security 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 (a) contravene any existing
applicable law, statute, rule or regulation or any judgment, decree or permit
to
which any of the Borrowers or any other Security Party is subject, (b) 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 any of the Borrowers or any
other Security Party is a party or is subject or by which it or any of its
property is bound, (c) contravene or conflict with any provision of the
constitutional documents of any of the Borrowers or any other Security Party
or
(d) result in the creation or imposition of or oblige any of the Borrowers
or
any of their Related Companies or any other Security Party to create any
Encumbrance (other than a Permitted Encumbrance) on any of the undertakings,
assets, rights or revenues of any of the Borrowers or their Related Companies
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 any of the Borrowers, threatened against
any of the Borrowers or any other Security Party which could have a material
adverse effect on the business, assets or financial condition of any of the
Borrowers or any other Security Party;
|
7.1.6
|
No
filings required
|
save
for
the registration of the Mortgages in the relevant register under the laws of
the
Flag State through 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
any of the Underlying Documents or the Security Documents and each of the
Underlying Documents and 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 Mortgages) and the choice of Bahamas law to govern
the
Mortgages, and the submissions by the Security Parties to the non-exclusive
jurisdiction of the English courts are valid and binding;
|
7.1.8
|
No
immunity
|
neither
the Borrowers 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 judgment, execution or other enforcement);
23
|
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 to which it is or is to be a party or the performance by
each
Security Party of its obligations under the Security Documents or the Underlying
Documents to which it is or is to be 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;
|
7.1.10
|
Shareholdings
|
each
of
the Borrowers is legally and beneficially owned by the Corporate
Guarantor;
|
7.1.11
|
Compliance
with ISM Code and ISPS
Code
|
the
Operator and the Ships have complied at all times with the ISM Code and the
ISPS
Code;
|
7.1.12
|
Environmental
matters
|
to
the
best of the knowledge and belief of each of the Borrowers and its
officers:
|
|
(a)
|
all
Environmental Laws applicable to any Fleet Vessel have been complied
with
and all consents, licences and approvals required under such Environmental
Laws have been obtained and complied with;
and
|
|
|
(b)
|
no
Environmental Claim has been made or threatened or is pending against
any
member of the Borrowers’ Group or any Fleet Vessel and not fully
satisfied; and
|
|
|
(c)
|
there
has been no Environmental Incident;
|
|
7.1.13
|
No
money laundering
|
in
relation to the borrowing by the Borrowers of the Loan, the performance and
discharge of its obligations and liabilities under this Agreement and the
transactions and other arrangements effected or contemplated by this Agreement,
each of the Borrowers is acting for its own account and that the foregoing
will
not involve or lead to contravention of any law, official, requirement or other
regulatory measure or procedure implemented to combat “money laundering” (as
defined in Article 1 of the Directive (91/308/EEC) of the Council of the
European Communities); and
|
7.1.14
|
Freedom
from Encumbrances
|
none
of
the Ships nor any of their respective Earnings, Insurances or Requisition
Compensation (each as defined in the relevant Ship Security Documents) nor
the
Earnings Account nor the Underlying Documents 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 Drawdown Date for any Advance, subject to any
Encumbrance other than a Permitted Encumbrance.
|
7.2
|
Initial
representations and
warranties
|
The
Borrowers jointly and severally further represent and warrant to each Creditor
that:
|
7.2.1
|
Pari
passu
|
the
obligations of each Borrower under this Agreement are direct, general and
unconditional obligations of such Borrower and rank at least pari passu with
all
other present and future unsecured and unsubordinated Indebtedness of such
Borrower except for obligations which are mandatorily preferred by operation
of
law and not by contract;
24
|
7.2.2
|
No
default under other Borrowed
Money
|
none
of
the Borrowers nor any other Security Party 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 Borrowed Money 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 Agent
in connection with the negotiation and preparation 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 to
which
such Security Party is or is to be a party 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;
|
7.2.6
|
The
Ships
|
each
Ship
will on the Drawdown Date of the Advance relevant to such Ship be:
|
|
(a)
|
in
the absolute ownership of the relevant Borrower who will on and after
such
Drawdown Date be the sole, legal and beneficial owner of such
Ship;
|
|
|
(b)
|
provisionally
registered through the offices of the relevant Registry as a ship
under
the laws and flag of the relevant Flag
State;
|
|
|
(c)
|
operationally
seaworthy and in every way fit for service;
and
|
|
|
(d)
|
classed
with the relevant Classification free of all requirements and
recommendations of the Classification
Society;
|
|
7.2.7
|
Ships'
employment
|
save
for
any Charters, none of the Ships is nor will on or before the Drawdown Date
of
the Advance relevant to such Ship 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 relevant Ship Security Documents would have required the consent
of the Agent and on or before the Drawdown Date of the Advance relevant to
such
Ship, there will not be any agreement or arrangement whereby the Earnings may
be
shared with any other person;
|
7.2.8
|
No
Material Adverse Change
|
there
has
been no material adverse change in the financial position of the Borrowers
or
the Corporate Guarantor from that described to the Agent in the
negotiation of this Agreement; and
|
7.2.9
|
Copies
true and complete
|
the
copies of the Underlying Documents delivered or to be delivered to the Agent
pursuant to clause 9.1 are, or will when delivered be, true and complete
copies of such documents; and such documents constitute valid and binding
obligations of the parties thereto enforceable in accordance with their
respective terms and there have been no amendments or variations thereof or
defaults thereunder.
25
|
7.3
|
Repetition
of representations and
warranties
|
On
and as
of each Drawdown Date and (except in relation to the representations and
warranties in clause 7.2) on each Interest Payment Date, the Borrowers
shall:
|
|
(a)
|
be
deemed to repeat the representations and warranties in clauses 7.1
and 7.2
as if made with reference to the facts and circumstances existing
on such
day; and
|
|
|
(b)
|
be
deemed to further represent and warrant to each of the Creditors
that the
then latest audited financial statements delivered to the Agent by
the
Borrowers (if any) have been prepared in accordance with generally
accepted international accounting principles and practices which
have been
consistently applied and present fairly and accurately the financial
position of the Borrowers, as at the end of the financial period
to which
the same relate and the results of the operations of the Borrowers,
for
the financial period to which the same relate and, as at the end
of such
financial period, neither the Borrowers nor any of their Related
Companies
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
Borrowers jointly and severally undertake with each Creditor 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,
they
will:
|
8.1.1
|
Notice
of Default
|
promptly
inform the Agent of any occurrence of which any of them become aware which
might
adversely affect the ability of any Security Party to perform its obligations
under any of the Security Documents or the Underlying Documents to which it
is
or is to be a party and, without limiting the generality of the foregoing,
will
inform the Agent of any Default or of any material litigation, arbitration
or
similar proceedings affecting the Borrowers and/or the Ships forthwith upon
becoming aware thereof and will from time to time, if so requested by the Agent,
confirm to the Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred which is continuing and no material
litigation, arbitration or similar proceedings have been commenced by or against
the Borrowers and/or the Ships;
|
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 and the Underlying Documents;
|
8.1.3
|
Use
of proceeds
|
use
the
Loan exclusively for the purposes specified in clause 1.1;
|
8.1.4
|
Pari
passu
|
26
ensure
that their obligations under this Agreement and the Master Swap Agreement shall,
at all times rank at least pari passu with all their 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
|
Financial
statements
|
prepare
unaudited financial statements of each of the Borrowers in accordance with
generally accepted international accounting principles and practices
consistently applied in respect of each financial year and deliver as many
copies of the same as the Agent may reasonably require as soon as practicable
but not later than ninety (90) days after the end of the financial period to
which they relate;
|
8.1.6
|
Delivery
of reports
|
deliver
to the Agent and each Bank as many copies as they may require of every report,
circular, notice or like document issued by the Borrowers or any of other
Security Party to its shareholders or creditors generally;
|
8.1.7
|
Provision
of further information
|
provide
the Agent and each Bank with:
|
|
(a)
|
such
financial and other information concerning the Borrowers and their
respective affairs as the Agent or any Bank may from time to time
reasonably require; and
|
|
|
(b)
|
such
documents and evidence as the Agent and any Bank shall from time
to time
require, based on applicable law and regulations from time to time
and the
Agent and such Bank’s own internal guidelines from time to time to
identify the Borrowers and the other Security Parties and any other
persons involved or affected by the transaction(s) contemplated by
this
Agreement;
|
|
8.1.8
|
Obligations
under Security Documents
|
and
will
procure that each of the other Security Parties will, duly and punctually
perform each of the obligations expressed to be assumed by them under the
Security Documents and the Underlying Documents to which they are a
party;
|
8.1.9
|
Compliance
with ISM Code
|
and
will
procure that any Operator will, comply with and ensure that the Ships and any
Operator complies with the requirements of the ISM Code, including (but not
limited to) the maintenance and renewal of valid certificates pursuant thereto
throughout the Security Period;
|
8.1.10
|
Withdrawal
of DOC and SMC
|
and
will
procure that any Operator will, immediately inform the Agent if there is any
threatened or actual withdrawal of such Operator’s DOC or the SMC in respect of
either of the Ships;
|
8.1.11
|
Issuance
of DOC and SMC
|
and
will
procure that any Operator will, promptly inform the Agent upon the issue to
any
of the Borrowers or any Operator of a DOC and to any of the Ships of an SMC
or
the receipt by any of the Borrowers or any Operator of notification that its
application for the same has been refused;
|
8.1.12
|
Compliance
with ISPS Code
|
and
will
procure that each Ship will comply with the requirements of the ISPS Code
including (but not limited to) the maintenance and renewal of the ISSC for
each
Ship pursuant to the ISPS Code and will immediately inform the Agent if there
is
any actual or threatened withdrawal of the ISSC for any Ship;
27
|
8.1.13
|
Know
your customer and money laundering
compliance
|
provide
the Banks with such documents and evidence as the Banks shall from time to
time
require, based on applicable law and regulations from time to time and the
Banks’ own “know your customer” internal guidelines from time to time to
identify the Borrowers and the other Security
Parties, including the ultimate legal and beneficial owner or owners of such
entities, and any other persons involved or affected by the transaction(s)
contemplated by this Agreement; and
|
8.1.14
|
Charters
|
shall
promptly deliver to the Agent a final draft of any Charter prior to execution
thereof and deliver to the Agent a Charter Assignment in respect of such Charter
and all notices and acknowledgements required thereunder concurrently with
the
execution of such Charter.
|
8.2
|
Security
value maintenance
|
|
8.2.1
|
Security
shortfall
|
If
at any
time the Security Value shall be less than the Security Requirement, the Agent
may give notice to the Borrowers requiring that such deficiency be remedied
and
then the Borrowers shall, within a period of thirty (30) days of the date of
receipt by the Borrowers of the Agent’s said notice, either:
|
(a)
|
prepay
such sum in Dollars as will result in the Security Requirement after
such
prepayment (taking into account any other repayment of the Loan made
between the date of the notice and the date of such prepayment) being
equal to the Security Value; and/or
|
|
|
(b)
|
provide
cash collateral (to be held in an account which has been pledged
in favour
of the Agent (as security agent and trustee on behalf of the Creditors)
of
such sum which, when added to the Security Value, shall not be less
than
the Security Requirement as at such date;
and/or
|
|
|
(c)
|
constitute
to the satisfaction of the Banks such further security for the Loan
as
shall be acceptable to the Banks having a value for security purposes
(as
determined by the Banks in their absolute discretion) at the date
upon
which such further security shall be constituted which, when added
to the
Security Value, shall not be less than the Security Requirement as
at such
date.
|
The
provisions of clauses 4.5 and 4.6 shall apply to prepayments under
clause 8.2.1(a).
|
8.2.2
|
Valuations
of the Ships
|
Each
of
the Ships shall, for the purposes of this Agreement, be valued in Dollars at
yearly intervals by an independent firm of shipbrokers suitably qualified and
experienced in dealing with similar types of vessels to the Ships appointed
by
the Agent in its sole discretion. Each such valuation shall be made
without, unless required by the Agent, 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 charterparty or other engagement concerning the relevant Ship.
The mean of such valuations shall constitute the value of the Ships for the
purposes of this clause 8.2.
The
value
of any Ship determined in accordance with the provisions of this clause 8.2
shall be binding upon the parties hereto until such time as any further such
valuations shall be obtained.
|
8.2.3
|
Information
|
28
The
Borrowers jointly and severally undertake with the Agent and each of the Banks
to supply to the Agent and to any such shipbrokers such information concerning
either of the Ships and its condition as the Agent or any such shipbrokers
may
require for the purpose of making any such valuation.
|
8.2.4
|
Costs
|
All
costs
in connection with the Agent obtaining any valuation of the Ships referred
to in
clause 8.2.2, and any valuation either of any additional security for the
purposes of ascertaining the Security Value at any time or necessitated by
the
Borrowers electing to constitute additional security pursuant to
clause 8.2.1(c), shall be borne by the Borrowers.
|
8.2.5
|
Valuation
of additional security
|
For
the
purpose of this clause 8.2, the market value of any additional security
provided or to be provided to the Banks shall be determined by the Banks in
their absolute discretion without any necessity for the Banks assigning any
reason thereto, Provided always that any vessel shall be valued under this
clause 8.2 as if it were a “Ship”.
|
8.2.6
|
Documents
and evidence
|
In
connection with any additional security provided in accordance with this
clause 8.2, the Banks shall be entitled to receive such evidence and
documents of the kind referred to in Schedule 3 as may in the Banks’
opinion be appropriate and such favourable legal opinions as the Banks shall
in
their absolute discretion require.
|
8.2.7
|
Security
Release
|
If
the
Security Value shall at any time exceed the Security Requirement, and the
Borrowers shall previously have provided further security to the Bank pursuant
to clause 8.2.1(b) or 8.2.1(c), if such excess has prevailed for a period in
excess of 90 days then the Agent shall, as soon as reasonably practicable after
notice from the Borrowers to do so and subject to no Default having occurred
and
continuing and to the Agent being indemnified to its satisfaction against the
cost of doing so, release any such further security specified by the Borrowers
provided that the Agent is satisfied that, immediately following such release,
the Security Value will equal or exceed an amount equal to one hundred and
ten
percent (110%) of the Security Requirement.
|
8.3
|
Negative
undertakings
|
The
Borrowers jointly and severally undertake with the Agent and each of the other
Creditors that, from the date of this Agreement and so long as any moneys are
owing under the Security Documents and while all or any part of the Commitment
remains outstanding, they will not, without the prior written consent of the
Agent:
|
8.3.1
|
Negative
pledge
|
permit
any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or be
created or extended over all or any part of their respective present or future
undertakings, assets, rights or revenues to secure or prefer any of their
present or future Indebtedness or other liability or obligation of the Borrowers
or that of any other person;
|
8.3.2
|
No
merger
|
merge
or
consolidate with any other person;
|
8.3.3
|
Disposals
|
sell,
transfer, abandon, lend or otherwise dispose of or cease to exercise direct
control over any part (being alone or, when aggregated with all other disposals
falling to be taken into account pursuant to this clause 8.3.3, material in
the
opinion of the Banks in relation to the undertakings, assets, rights, and
revenues of the Borrowers) of their present or future undertaking, assets,
rights or revenues (otherwise than by transfers, sales or disposals for full
consideration in the ordinary course of trading) whether by one or a series
of
transactions related or not except in relation to any sale of a Ship in
accordance with the terms of this Agreement;
29
|
8.3.4
|
Other
business
|
undertake
any business other than the ownership and operation of the Ships and the
chartering of the Ships to third parties and matters incidental
thereto;
|
8.3.5
|
Acquisitions
|
acquire
any further assets other than the Ships and rights arising under contracts
entered into by or on behalf of the Borrowers in the ordinary course of their
businesses of owning, operating and chartering the Ships;
|
8.3.6
|
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 their
business of owning, operating and chartering the Ships;
|
8.3.7
|
No
borrowing
|
incur
any
Borrowed Money (including, without limitation, from their shareholders or
otherwise) except for Borrowed Money pursuant to the Security
Documents;
|
8.3.8
|
Repayment
of borrowings
|
repay
or
prepay the principal of, or pay interest on or any other sum in connection
with
any of their Borrowed Money except for Borrowed Money pursuant to the Security
Documents;
|
8.3.9
|
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 and 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 a Ship is entered, guarantees required to procure the
release of such Ship from any arrest, detention, attachment or levy or
guarantees or undertakings required for the salvage of such Ship);
|
8.3.10
|
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;
|
8.3.11
|
Sureties
|
permit
any of their Indebtedness to any person (other than the Creditors pursuant
to
the Security Documents) to be guaranteed 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 a Ship is entered, guarantees
required to procure the release of such Ship from any arrest, detention,
attachment or levy or guarantees or undertakings required for the salvage of
a
Ship);
|
8.3.12
|
Share
Capital
|
purchase
or otherwise acquire for value any shares of their capital or distribute any
of
their present or future assets, undertakings, rights or revenues to any of
their
shareholders (except for any dividends payable to their
shareholders);
30
|
8.3.13
|
Subsidiaries
|
form
or
acquire any Subsidiaries;
|
8.3.14
|
Constitutional
documents
|
agree
to
any change to their articles of incorporation, by-laws or other constitutional
documents;
|
8.3.15
|
Ownership
of shares
|
|
|
(a)
|
permit
any change in the legal and beneficial ownership of the shares in
the
Borrowers; or
|
|
|
(b)
|
permit
any change in the majority shareholders of the Corporate Guarantor
from
that disclosed to the Agent on or before the date of this Agreement
save
that no such consent shall be required if the Corporate Guarantor
shall
become a Subsidiary of Bear Xxxxxxx Merchant Manager III, L.P. and
the
Agent’s consent to a future transfer of shares in the Corporate Guarantor
that would result in the Corporate Guarantor ceasing to be a Subsidiary
of
Bear Xxxxxxx Merchant Manager III, L.P. shall not be unreasonably
withheld
or delayed;
|
|
8.3.16
|
Assignment
of Earnings
|
assign
or
agree to assign otherwise than to the Agent (as security agent and trustee
on
behalf of the Creditors) the Earnings or any part thereof in respect of any
of
the Ships; and
|
8.3.17
|
Classification,
Classification Society or Flag
State
|
change
the Classification, the Classification Society or the Flag State of any of
the
Ships.
|
9
|
Conditions
|
|
9.1
|
Documents
and evidence
|
The
obligation of each Bank to make its Commitment available shall be subject to
the
condition that the Agent, or its duly authorised representative, shall have
received:
|
9.1.1
|
not
later than two Banking Days before the day on which the Drawdown
Notice
for the first Advance to be drawn down is given, the documents and
evidence specified in Part 1 of Schedule 3 in form and substance
satisfactory to the Agent; and
|
|
9.1.2
|
on
or prior to the drawdown of each Advance, the documents and evidence
specified in Part 2 of Schedule 3 in relation to the Ship to which
such Advance relates, in form and substance satisfactory to the
Agent.
|
|
9.2
|
General
conditions precedent
|
The
obligation of the Banks to make any Advance shall be subject to the further
conditions that, at the time of the giving of the Drawdown Notice for such
Advance, and at the time of the making of such Advance:
|
9.2.1
|
the
representations and warranties contained in (a) clauses 7.1, 7.2
and
7.3 and (b) clause 4 of the Corporate Guarantee, 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
Event of Default shall have occurred and be continuing unremedied
or
unwaived or would result from the making of the relevant
Advance.
|
31
|
9.3
|
Waiver
of conditions precedent
|
The
conditions specified in this clause 9 are inserted solely for the benefit
of the Banks and may be waived by the Banks in whole or in part and with or
without conditions.
|
9.4
|
Further
conditions precedent
|
Not
later
than five Banking Days prior to each Drawdown Date and not later than five
Banking Days prior to each Interest Payment Date, the Banks may request and
the
Borrowers shall, not later than two Banking Days prior to such date, deliver
to
the Banks on such request further relevant certificates and/or favourable
opinions as to any or all of the matters which are the subject of clauses7,
8, 9
and 10.
|
10
|
Events
of Default
|
|
10.1
|
Events
|
There
shall be an Event of Default if:
|
10.1.1
|
Non-payment:
any 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
|
|
10.1.2
|
Master
Swap Agreement: (a) an Event of Default or Potential Event of
Default (in each case as defined in the Master Swap Agreement) has
occurred and is continuing under the Master Swap Agreement or (b)
an Early
Termination Date (as defined in the Master Swap Agreement) has occurred
or
been or become capable of being effectively designated under the
Master
Swap Agreement or (c) a person entitled to do so give notice of an
Early
Termination Event under Section 6(b)(iv) of the Master Swap Agreement
or
(d) the Master Swap Agreement is cancelled, terminated, suspended,
rescinded or revoked or otherwise ceases to remain in full force
and
effect for any reason; or
|
|
10.1.3
|
Breach
of Insurance and certain other obligations: any of the Borrowers
or, as the context may require, the Manager fails to obtain and/or
maintain the Insurances (as defined in, and in accordance with the
requirements of, the Ship Security Documents) for any of the Ships
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 any of the Borrowers, the Manager or any other person or
any of
the Borrowers commits any breach of or omits to observe any of the
obligations or undertakings expressed to be assumed by it under
clauses 8.2 or 8.3 respectively;
or
|
|
10.1.4
|
Breach
of other obligations: any 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) or the Underlying
Documents and, in respect of any such breach or omission which in
the
opinion of the Banks is capable of remedy, such action as the Banks
may
require shall not have been taken within fourteen (14) days of the
Agent
and/or the Banks 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 any 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 or any of the Underlying
Documents is or proves to have been incorrect or misleading in any
material respect; or
|
|
10.1.6
|
Cross-default:
any Indebtedness of any Borrower or the Corporate Guarantor is not
paid
when due or any Indebtedness of any Borrower or the Corporate Guarantor
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 Borrower or the Corporate
Guarantor
of a voluntary right of prepayment) or any creditor of any Borrower
or the
Corporate Guarantor becomes entitled to declare any such Indebtedness
due
and payable or any facility or commitment available to any Borrower
or the
Corporate Guarantor relating to Indebtedness is withdrawn, suspended
or
cancelled by reason of any default (however described) of the person
concerned unless the relevant Borrower or the Corporate Guarantor
shall
have satisfied the Agent that such withdrawal, suspension or cancellation
will not affect or prejudice in any way the relevant Borrower's or
the
Corporate Guarantor’s ability to pay its debts as they fall due and fund
its commitments, or any guarantee given by any Borrower or the Corporate
Guarantor in respect of Indebtedness is not honoured when due and
called
upon and, the amount, or aggregate amount at any one time, of all
Indebtedness in relation to which any of the foregoing events shall
have
occurred and be continuing is (in the case of the Corporate Guarantor,
but
not the Borrowers) equal to or greater than one million five hundred
thousand Dollars ($1,500,000) or its equivalent in the currency in
which
the same is denominated and
payable; or
|
32
|
10.1.7
|
Legal
process: any judgment or order made against any Security Party
is
not stayed or complied with within 21 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 any Security Party and is not discharged
within 21 days; or
|
|
10.1.8
|
Insolvency:
any Security Party becomes insolvent or stops or suspends making
payments
(whether of principal or interest) with respect to all or any class
of its
debts or announces the intention to do so;
or
|
|
10.1.9
|
Reduction
or loss of capital: a meeting is convened by any Security Party
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 any Security Party (not
being
an action, proceedings or a procedure which the Borrowers or the
relevant
Security Party can demonstrate to the satisfaction of the Agent,
by
providing an opinion of leading counsel to that effect, is frivolous,
vexatious or an abuse of the process of the court or relates to a
claim to
which the relevant Security Party has a good defence and which is
being
vigorously contested by the relevant Security Party) or an order
is made
or resolution passed for the winding up of any Security Party 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 any Security Party
or an
administration order is made in relation to any Security Party;
or
|
|
10.1.12
|
Appointment
of receivers and managers: any administrative or other receiver
is appointed of any Security Party or the whole or a substantial
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 any Security Party;
or
|
|
10.1.13
|
Compositions:
any corporate action, legal proceedings or other procedures or steps
are
taken, or negotiations are commenced by any Security Party 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 any Security Party, 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 reasonable opinion of the Banks and/or Agent,
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 any Security Party or any other Restricted
Company
otherwise becomes subject, in any such country or territory, to the
operation of any law relating to insolvency, bankruptcy or liquidation;
or
|
33
|
10.1.15
|
Cessation
of business: any Security Party suspends or ceases or threatens
to suspend or cease to carry on its business;
or
|
|
10.1.16
|
Seizure:
all or a material part of the undertaking, assets, rights or revenues
of,
or shares or other ownership interests in, any Security Party or
any other
Restricted Company are seized, nationalised, expropriated or compulsorily
acquired by or under the authority of any government;
or
|
|
10.1.17
|
Invalidity:
any of the Security Documents or any of the Underlying 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 any Security Party which is a party thereto,
or
if any such Security Party shall deny that it has any, or any further,
liability thereunder; or
|
|
10.1.18
|
Unlawfulness:
it becomes impossible or unlawful at any time for any 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 Agent or the other Creditors
to exercise the rights or any of them vested in it or them under
any of
the Security Documents or otherwise;
or
|
|
10.1.19
|
Repudiation:
any 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 (other than Permitted Liens) 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
|
Material
adverse change: there occurs, in the reasonable opinion of the
Agent, a material adverse change in the financial position of any
Security
Party by reference to the financial position of such Security Party
as
described by any Borrower or any Security Party to the Agent in the
negotiation of this Agreement; or
|
|
10.1.22
|
Arrest:
any Ship is arrested, confiscated, seized, taken in execution, impounded,
forfeited, detained in exercise or purported exercise of any possessory
lien or other claim or otherwise taken from the possession of the
relevant
Borrower and the relevant Borrower shall fail to procure the release
of
such Ship within a period of twenty-one (21) days thereafter;
or
|
|
10.1.23
|
Registration:
the registration of any Ship under the laws and flag of the Flag
State is
cancelled or terminated without the prior written consent of the
Agent or,
if any Ship is only provisionally registered on the Delivery Date
for such
Ship, such Ship is not permanently registered under the laws and
flag of
the Flag State within the time limit imposed by the Flag State (subject
always to the relevant Mortgage remaining in full force and effect);
or
|
|
10.1.24
|
Unrest:
the Flag State becomes involved in hostilities or civil war or there
is a
seizure of power in the Flag State by unconstitutional means if,
in any
such case, such event could in the opinion of the Banks and/or the
Agent
reasonably be expected to have a material adverse effect on the security
constituted by any of the Security Documents;
or
|
|
10.1.25
|
Environmental
Incidents: there is an Environmental Incident which gives rise,
or may give rise, to an Environmental Claim which could, in the opinion
of
the Banks and/or Agent be expected to have a material adverse effect
(a)
on the business, assets, operations, property or financial condition
of
any Security Party and/or any of the Borrowers’ Group or (b) on the
security constituted by any of the Security Documents or the
enforceability of that security in accordance with its terms;
or
|
|
10.1.26
|
P&I:
any Borrower, the Manager or any other person fails or omits to comply
with any requirements of the protection and indemnity association
or other
insurer with which a 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, any cover in
respect
of liability for Environmental Claims arising in jurisdictions where
such
Ship operates or trades) is or may be liable to cancellation,
qualification or exclusion at any
time.
|
34
|
10.2
|
Acceleration
|
The
Agent
may (with the prior approval of the Majority Banks), without prejudice to any
other rights of the Banks, at any time after the occurrence of an Event of
Default by notice to the Borrowers declare that:
|
10.2.1
|
the
obligation of each Bank to make its Commitment available shall be
terminated, whereupon the Commitment shall be reduced to zero forthwith;
and/or
|
|
10.2.2
|
the
Loan and all interest and commitment commission accrued and all other
sums
payable under the Security Documents have become due and payable,
whereupon the same shall, immediately or in accordance with the terms
of
such notice, become due and
payable.
|
|
10.3
|
Demand
basis
|
If,
pursuant to clause 10.2.2, the Agent declares the Loan to be due and
payable on demand, the Agent may (and if so instructed by the Majority Banks
shall) by written notice to the Borrowers (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
Borrowers shall on demand indemnify each Bank, the Arranger, the Swap Bank,
the
Security Trustee and the Agent, without prejudice to any of their rights under
any of the Security Documents, against any loss (excluding loss of Margin)
or
expense which such Bank, the Swap Bank, the Security Trustee, Arranger or the
Agent shall certify as sustained or incurred by it as a consequence
of:
|
11.1.1
|
any
default in payment of any sum under any of the Security Documents
when
due;
|
|
11.1.2
|
the
occurrence of any other Event of
Default;
|
|
11.1.3
|
any
prepayment of the Loan or part thereof being made under clauses 4.4,
8.2.1
(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
|
any
Advance not being made for any reason (excluding any default by the
Agent
or any Bank) after the Drawdown Notice for such Advance has been
given,
|
including,
in any such case, but not limited to, any loss or expense sustained or incurred
by the relevant Creditor in maintaining or funding its Contribution or, as
the
case may be, Commitment or any part thereof or in liquidating or re-employing
deposits from third parties acquired to effect or maintain its Contribution
or,
as the case may be, Commitment or any part thereof or any other amount owing
to
such Creditor.
In
case
any of such events generate a benefit, the net value thereof as determined
by
the Agent shall be accounted for by each Creditor concerned to the
Borrowers.
|
11.2
|
Currency
indemnity
|
If
any
sum due from any of the Borrowers under any of the Security Documents or any
order or judgment 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 judgment into
another currency (the “second currency”) for the purpose of (a)
making or filing a claim or proof against the Borrowers or any of them, (b)
obtaining an order or judgment in any court or other tribunal or (c) enforcing
any order or judgment given or made in relation to any of the Security
Documents, the Borrowers shall indemnify and hold harmless each Creditor 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 relevant Creditor 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, judgment, claim or
proof. Any amount due from the Borrowers under this clause 11.2
shall be due as a separate debt and shall not be affected by judgment 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.
35
|
11.3
|
Environmental
indemnity
|
The
Borrowers shall indemnify each Creditor on demand and hold it harmless from
and
against all costs, expenses, payments, charges, losses, demands, liabilities,
actions, proceedings (whether civil or criminal), penalties, fines, damages,
judgments, orders, sanctions or other outgoings of whatever nature which may
be
suffered, incurred or paid by, or made or asserted against such Creditor 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 such Creditor if such Environmental Claim would not have
been, or been capable of being, made or asserted against such Creditor 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.
|
12
|
Unlawfulness
and increased costs
|
|
12.1
|
Unlawfulness
|
If
it is
or becomes contrary to any law or regulation for any Bank to make any Advance
or
to maintain its Commitment or fund its Contribution, such Bank shall promptly,
through the Agent, give notice to the Borrowers whereupon (a) such Bank’s
Commitment shall be reduced to zero and (b) the Borrowers shall be obliged
to
prepay the Contribution of such Bank 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 Borrowers under this 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 (whether
or
not having the force of law, but, if not having the force of law, with which
the
Agent and/or any Bank or, as the case may be, its holding company habitually
complies), including (without limitation) those relating to Taxation, capital
adequacy, liquidity, reserve assets, cash ratio deposits and special deposits,
is to:
|
12.2.1
|
subject
any Bank to Taxes or change the basis of Taxation of any 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 such Bank
imposed
in the jurisdiction in which its principal or lending office under
this
Agreement is located); and/or
|
|
12.2.2
|
increase
the cost to, or impose an additional cost on, any Bank or its holding
company in making or keeping such Bank’s Commitment available or
maintaining or funding all or part of such Bank’s Contribution;
and/or
|
36
|
12.2.3
|
reduce
the amount payable or the effective return to any Bank under any
of the
Security Documents; and/or
|
|
12.2.4
|
reduce
any Bank's or its holding company'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 such Bank's obligations under any of the Security
Documents; and/or
|
|
12.2.5
|
require
any Bank or its holding company to make a payment or forgo a return
on or
calculated by reference to any amount received or receivable by such
Bank
under any of the Security Documents;
and/or
|
|
12.2.6
|
require
any Bank or its holding company to incur or sustain a loss (including
a
loss of future potential profits) by reason of being obliged to deduct
all
or part of its Commitment or the Loan from its capital for regulatory
purposes,
|
then
and
in each such case (subject to clause 12.3):
|
|
(a)
|
such
Bank shall notify the Borrowers in writing of such event promptly
upon its
becoming aware of the same; and
|
|
|
(b)
|
the
Agent shall negotiate with the Borrowers in good faith with a view
to
restructuring the transaction constituted by the Security Documents
in a
way which will (in the reasonable opinion of the Agent) satisfactorily
avoid either the unlawfulness or increased costs concerned (each
as the
case may be) without either decreasing the amounts or net returns
due to
the Security Trustee, the Agent, the Swap Bank and the Banks under
the
Security Documents or which would, but for such unlawfulness or such
increased costs (each as the case may be), have been so due, or otherwise
adversely affecting the rights, interests and security of the Banks
under
the transaction as presently constituted and will not (in the reasonable
opinion of the Agent) increase the cost to the Borrowers of or otherwise
adversely affect the rights, and interests of the Borrowers under
the
transactions (and unless the Agent nominates a longer period (which
it
shall be at liberty to do)), such negotiations shall continue for
a period
of thirty (30) days after the Borrowers have been given notice under
clause 12.2 (a) above or for such lesser period as is permitted under
applicable law having regard to either the unlawfulness or the increased
costs concerned (such period called the “Negotiation
Period”);
|
|
|
(c)
|
if
at the end of the Negotiation Period the Agent and the Borrowers
have not
reached agreement on a restructuring of the transaction on the basis
described in clause 12.2(b) above then the Borrowers shall on demand,
made
at any time after expiry of the Negotiation Period whether or not
the
relevant Bank’s Contribution has been repaid, pay to such Bank the amount
which such Bank specifies (in a certificate (which shall be conclusive
in
the absence of manifest error) setting forth the basis of the computation
of such amount but not including any matters which such Bank regards
as
confidential in relation to its funding arrangements) is required
to
compensate such Bank for such alternative funding, increased cost,
reduction, payment or forgone
return.
|
For
the
purposes of this clause 12.2 “holding company” means the
company or entity (if any) within the consolidated supervision of which a Bank
is included.
|
12.3
|
Exception
|
Nothing
in clause 12.2 shall entitle any 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.
37
|
13
|
Security,
set-off and pro-rata
payments
|
|
13.1
|
Application
of moneys
|
All
moneys received by the Agent and/or any of the other Creditors 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 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 Agent and/or the Security Trustee under any of
the
Security Documents (on a pro rata basis as between the Agent and
the
Security Trustee if applicable);
|
|
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 to the Swap Bank of any sums owing to the Swap
Bank
under the Master Swap Agreement;
|
|
13.1.5
|
fifthly
in or towards payment to any Creditor (other than the Swap Bank)
of any
other sums owing to it under any of the Security Documents;
and
|
|
13.1.6
|
sixthly
the surplus (if any) shall be paid to the Borrowers or to whomsoever
else
may be entitled to receive such surplus or in such other manner as
the
Banks shall determine.
|
|
13.2
|
Set-off
|
|
13.2.1
|
The
Borrowers authorise each Bank (without prejudice to any of such Bank’s
rights at law, in equity or otherwise), at any time after the occurrence
of Default which is continuing and without notice to the
Borrowers:
|
|
|
(a)
|
to
apply any credit balance to which the Borrowers or any of them is
then
entitled standing upon any account of such Borrower with any branch
of
such Bank in or towards satisfaction of any sum due and payable from
such
Borrower to such Bank under any of the Security
Documents;
|
|
|
(b)
|
in
the name of any Borrower and/or such Bank to do all such acts and
to
execute all such documents as may be necessary or expedient to effect
such
application; and
|
|
|
(c)
|
to
combine and/or consolidate all or any accounts in the name of the
Borrowers with such Bank.
|
For
such
purposes, each such 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. No Bank shall be obliged to exercise any right
given to it by this clause 13.2. Each Bank shall notify the Agent and
the Borrowers forthwith upon the exercise or purported exercise of any right
of
set-off giving full details in relation thereto and the Agent shall inform
the
other Banks.
|
13.2.2
|
Without
prejudice to their rights hereunder and/or under the Master Swap
Agreement, the Swap Bank may at the same time as, or at any time
after,
any Event of Default has occurred or the Borrowers default under
the
Master Swap Agreement, set-off any amount due now or in the future
from
the Borrowers to the Swap Bank under this Agreement against any amount
due
from the Swap Bank to the Borrowers under the Master Swap Agreement
and
apply the first amount in discharging the second amount. The
effect of any set-off under this clause (b) shall be effective to
extinguish or, as the case may require, reduce the liabilities of
the Swap
Bank under the Master Swap
Agreement.
|
38
|
13.3
|
Pro-rata
payments
|
If
at any
time the proportion which any Bank (the “Recovering Bank”) has
received or recovered (other than from an Assignee, a Transferee Bank or a
sub-participant in such Bank’s Contribution or any other payment of an amount
due to the Recovering Bank for its sole account pursuant to clauses 3.6, 4.2,
5.1, 6.1, 11.1, 11.2, 12.1 or 12.2) in respect of its share of any payment
to be
made for the account of the Recovering Bank and one or more other Banks under
any of the Security Documents is greater (the amount of the excess being
referred to in this clause 13.3 as the “excess amount”)
than the proportion of the share of such payment received or recovered by the
Bank receiving or recovering the smallest or no proportion of its share,
then:
|
13.3.1
|
within
two Banking Days of such receipt or recovery, the Recovering Bank
shall
pay to the Agent an amount equal (or equivalent) to the excess
amount;
|
|
13.3.2
|
the
Agent shall treat such payment as if it were part of the payment
to be
made by the Borrowers and shall distribute the same in accordance
with
clause 13.1; and
|
|
13.3.3
|
as
between the Borrowers and the Recovering Bank the excess amount shall
be
treated as not having been paid but the obligations of the Borrowers
to
the other Banks shall, to the extent of the amount so paid to them,
be
treated as discharged.
|
Each
Bank
shall forthwith notify the Agent of any such receipt or recovery by such Bank
other than by payment through the Agent. If any excess amount
subsequently has to be wholly or partly refunded by the Recovering Bank which
paid an amount equal thereto to the Agent under sub-clause 13.3.1 above each
Bank to which any part of such amount was distributed shall on request from
the
Recovering Bank repay to the Recovering Bank such Bank’s pro-rata share of the
amount which has to be refunded by the Recovering Bank. Each Bank
shall on request supply to the Agent such information as the Agent may from
time
to time request for the purpose of this clause 13.3. Notwithstanding
the foregoing provisions of this clause 13.3 no Recovering Bank shall be obliged
to share any excess amount which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under this Agreement
with any other party which has a legal right to, but does not, either join
in
such proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the proceedings
instituted by the Recovering Bank are instituted by it without prior notice
having been given to such party through the Agent).
|
13.4
|
No
release
|
For
the
avoidance of doubt it is hereby declared that failure by any Recovering Bank
to
comply with the provisions of clause 13.3 shall not release any other
Recovering Bank from any of its obligations or liabilities under
clause 13.3.
|
13.5
|
No
charge
|
The
provisions of this clause 13 shall not, and shall not be construed so as to,
constitute a charge by a Bank over all or any part of a sum received or
recovered by it in the circumstances mentioned in clause 13.3.
|
13.6
|
Further
assurance
|
The
Borrowers jointly and severally undertake with each Creditor 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 each Bank
enforceable in accordance with their respective terms and that they will, at
their 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 Agent may be necessary or desirable for perfecting the security
contemplated or constituted by the Security Documents.
39
|
13.7
|
Conflicts
|
In
the
event of any conflict between this Agreement and any of the other Borrowers'
Security Documents, the provisions of this Agreement shall prevail.
|
14
|
Accounts
|
|
14.1
|
General
|
The
Borrowers jointly and severally undertake with each of the Banks and the Agent
that they will:
|
14.1.1
|
on
or before the first Drawdown Date procure that the Earnings Account
is
opened; and
|
|
14.1.2
|
procure
that all moneys payable to the Borrowers in respect of the Earnings
shall
unless and until the Agent directs to the contrary pursuant to clause
2.1.1 of the Deeds of Covenant be paid to the Earnings
Account.
|
Provided
however that if any of the moneys paid to the Earnings Account are payable
in a
currency other than Dollars, the Borrowers shall instruct the Account Bank
to
convert such moneys into Dollars at the Account Bank’s spot rate of exchange at
the relevant time for the purchase of Dollars with such currency and the term
“spot rate of exchange” shall include any premium and costs of exchange payable
in connection with the purchase of Dollars with such currency.
|
14.2
|
Earnings
Account: withdrawals
|
Unless
the Banks otherwise agree in writing, neither the Borrowers nor the Corporate
Guarantor shall be entitled to withdraw any moneys from the Earnings Account
at
any time after an Event of Default shall have occurred which is continuing
unremedied and unwaived. The Borrowers shall have unrestricted access
to the Earnings Account until the occurrence of an Event of Default which is
continuing unremedied and unwaived.
|
14.3
|
Application
of accounts
|
At
any
time after the occurrence of an Event of Default, the Banks may, without notice
to the Borrowers, instruct the Account Bank to apply all moneys then standing
to
the credit of the Earnings Account (together with interest from time to time
accruing or accrued thereon) in payment to the Agent and the Agent shall apply
the same in or towards satisfaction of any sums due to the Agent and/or the
Banks under the Security Documents in the manner specified in
clause 13.1.
|
14.4
|
Pledging
of Account
|
The
Earnings Account and all amounts from time to time standing to the credit
thereof shall be subject to the security constituted by and the rights conferred
by the Account Pledge.
|
15
|
Assignment,
substitution
and lending office
|
|
15.1
|
Benefit
and burden
|
This
Agreement shall be binding upon, and enure for the benefit of, the Banks, the
Security Trustee, the Arranger, the Agent, the Swap Bank and the Borrowers
and
their respective successors.
40
|
15.2
|
No
assignment by Borrowers
|
The
Borrowers may not assign or transfer any of their rights or obligations under
this Agreement or any of the other Security Documents without the prior written
consent of the Agent.
|
15.3
|
Assignment
by Banks
|
Each
Bank
may assign all or any part of its rights in respect of its Contribution under
this Agreement or under any of the other Security Documents to any of its
Related Companies (an “Assignee”) without the prior consent of
the Borrowers.
|
15.4
|
Substitution
|
Each
Bank
may transfer, by way of novation, all or any part of its rights, benefits and/or
obligations under this Agreement to any of its Related Companies (a
“Substitute without the prior written consent of the Borrowers
or to any other Bank or financial institution with the prior written consent
of
the Borrowers (such consent not to be unreasonably withheld or
delayed). Any such novation shall be effected upon five Banking Days’
prior notice by delivery to the Agent of a duly completed Substitution
Certificate duly executed by such Bank, the Substitute and the Agent (for
itself, the Borrowers and the other Creditors). On the effective date
specified in a Substitution Certificate so executed and delivered, to the extent
that they are expressed in such Substitution Certificate to be the subject
of
the novation effected pursuant to this clause 15.4:
|
15.4.1
|
the
existing parties to this Agreement and the Bank party to the relevant
Substitution Certificate shall be released from their respective
obligations towards one another under this Agreement (“discharged
obligations”) and their respective rights against one another
under this Agreement (“discharged rights”) shall be
cancelled;
|
|
15.4.2
|
the
Substitute party to the relevant Substitution Certificate and the
existing
parties to this Agreement (other than the Bank party to such Substitution
Certificate) shall assume obligations towards each other which differ
from
the discharged obligations only insofar as they are owed to or assumed
by
such Substitute instead of to or by such
Bank;
|
|
15.4.3
|
the
Substitute party to the relevant Substitution Certificate and the
existing
parties to this Agreement (other than the Bank party to such Substitution
Certificate) shall acquire rights against each other which differ
from the
discharged rights only insofar as they are exercisable by or against
such
Substitute instead of by or against such Bank;
and
|
|
15.4.4
|
in
the event any Bank transfers by way of novation all or any part of
its
rights, benefits and/or obligations under this Agreement to another
person, this Agreement and the Security Documents shall remain in
full
force and effect,
|
and,
on
the date upon which such novation takes effect, the Substitute shall pay to
the
Agent for its own account a fee in the sum of one thousand Dollars ($1,000)
to
be paid by the Substitute and the Bank between them. The Agent shall
promptly notify the other parties hereto of the receipt by it of any
Substitution Certificate and shall promptly deliver a copy of such Substitution
Certificate to the Borrowers.
|
15.5
|
Reliance
on Substitution
Certificate
|
The
Agent, the other Creditors and the Borrowers shall be fully entitled to rely
on
any Substitution Certificate delivered to the Agent in accordance with the
foregoing provisions of this clause 15 which is complete and regular on its
face
as regards its contents and purportedly signed on behalf of the relevant Bank
and the Substitute and neither the Agent, nor the other Creditors nor the
Borrowers shall have any liability or responsibility to any party as a
consequence of placing reliance on and acting in accordance with any such
Substitution Certificate if it proves to be the case that the same was not
authentic or duly authorised.
|
15.6
|
Signing
of Substitution
Certificate
|
41
The
Borrowers and each of the other Creditors irrevocably authorise the Agent to
countersign each Substitution Certificate on its behalf without any further
consent of, or consultation with, the Borrowers or such Creditors (as the case
may be).
|
15.7
|
Construction
of certain references
|
If
any
Bank assigns all or any part of its rights or novates all or any part of its
rights, benefits and obligations as provided in clause 15.3 or 15.4 all relevant
references in this Agreement to such Bank shall thereafter be construed as
a
reference to such Bank and/or its Assignee or Substitute (as the case may be)
to
the extent of their respective interests.
|
15.8
|
Documenting
assignments and novations
|
If
any
Bank assigns all or any part of its rights or novates all or any part of its
rights, benefits and/or obligations as provided in clauses 15.3 or 15.4 the
Borrowers jointly and severally undertake, immediately on being requested to
do
so by the Agent and at the cost of the Bank that has so assigned or novated
all
or any part of its rights and/or obligations, 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 Substitute all or the relevant
part
of such Bank’s interest in the Security Documents and all relevant references in
this Agreement to such Bank shall thereafter be construed as a reference to
the
Bank and/or its Assignee or Substitute (as the case may be) to the extent of
their respective interests.
|
15.9
|
Lending
office
|
Each
Bank
shall lend through its office at the address specified in Schedule 1 or, as
the
case may be, in any relevant Substitution Certificate or through any other
office of such Bank selected from time to time by it through which such Bank
wishes to lend for the purposes of this Agreement.
|
15.10
|
No
additional costs
|
If
at the
time of, or immediately after, any assignment by a Bank of all or any part
of
its rights or benefits under this Agreement or any transfer by a Bank of any
part of the rights, benefits and/or obligations under this Agreement, the
Borrowers would be obliged to pay to the Assignee or Substitute under clause
6.7
or 12.2 any sum in excess of the sum (if any) which it would have been obliged
to pay to such Bank under the relevant clause in the absence of such assignment
or transfer, the Borrowers shall not be obliged to pay that excess.
|
15.11
|
Disclosure
of information
|
Any
Bank
or the Agent may disclose to a prospective assignee or substitute or transferee
or to any other person who may propose entering into contractual relations
with
such Bank or the Agent in relation to this Agreement such information about
the
Borrowers as such Bank or the Agent shall consider appropriate, subject to
compliance with all applicable banking confidentiality
requirements.
|
16
|
Agent
and Security Trustee
|
The
terms
and basis on which the Agent has been appointed by the other Creditors as
facility agent and the Security Trustee has been appointed as security agent
and
trustee respectively are set out in the Agency Agreement including, among other
things, the manner in which any decision to exercise any right, powers,
discretion or authority or to carry out any duty are to be made between the
other Creditors and the Agent or, as the case may be, the Security
Trustee.
42
|
17
|
Notices
and other matters
|
|
17.1
|
Notices
|
Every
notice, request, demand or other communication under this Agreement or (unless
otherwise provided therein) under any of the other Security Documents
shall:
|
17.1.1
|
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;
|
|
17.1.2
|
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 Banking Days after it has been put in to 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
|
|
17.1.3
|
be
sent:
|
|
|
(a)
|
if
to the Borrowers or any of them at:
|
|
|
c/o
MC Shipping Inc.
|
|
|
Xxxxx
Xxxxxx Center
|
|
|
0
xxx xx Xxxxxx
|
|
|
XX
00000 Xxxxxx
|
|
|
Fax
no:
|
x000
0000 0000
|
|
|
Attn:
|
Finance
Department
|
|
|
(b)
|
if
to the Agent and/or the Swap Bank and/or the and/or the Security
Trustee, Arranger and/or the Swap Bank
at:
|
|
|
KfW
|
|
|
Palmengartenstrasse
5-9
|
|
|
D60325
|
|
|
Frankfurt
am Main
|
|
|
Federal
Republic of Germany
|
|
|
Fax
No:
|
x00
00 0000 0000
|
|
|
Attn:
|
Credit
Operations
|
|
|
Shipping
X4b1
|
|
|
(c)
|
if
to a Bank, to its address or fax number specified in Schedule 1 or
in any
relevant Substitution Certificate,
|
or
to
such other address and/or numbers as is notified by one party to the other
parties under this Agreement.
|
17.2
|
No
implied waivers, remedies
cumulative
|
No
failure or delay on the part of the Agent, the Banks, the Swap Bank, the
Security Trustee, or any of them 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 Agent, the Banks, the Swap Bank, the Security
Trustee, or any of them 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.
|
17.3
|
English
language
|
43
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 Creditors or any of them shall be entitled to rely.
|
17.4
|
Counterparts
|
This
Agreement may be entered into in any number of counterparts and by the parties
to it on separate counterparts, each of which when executed and delivered shall
be an original, but all the counterparts together shall constitute one and
the
same instrument.
|
17.5
|
Borrowers'
obligations
|
|
17.5.1
|
Joint
and several
|
Notwithstanding
anything to the contrary contained in any of the Security Documents, the
agreements, obligations and liabilities of the Borrowers herein contained are
joint and several and shall be construed accordingly. Each of the
Borrowers agrees and consents to be bound by the Security Documents to which
it
is, or is to be, a party notwithstanding that the other Borrowers which were
intended to sign or to be bound may not do so or be effectually bound and
notwithstanding that any of the Security Documents may be invalid or
unenforceable against the other Borrowers (or any of them), whether or not
the
deficiency is known to any of the Creditors.
|
17.5.2
|
Borrowers
as principal debtors
|
Each
Borrower acknowledges and confirms that it is a principal and original debtor
in
respect of all amounts which may become payable by the Borrowers in accordance
with the terms of this Agreement or any of the other Security Documents and
agrees that the Creditors may also continue to treat it as such, whether or
not
any Creditor is or becomes aware that such Borrower is or has become a surety
for the other Borrowers (or any of them).
|
17.5.3
|
Indemnity
|
The
Borrowers hereby agree jointly and severally to keep the Creditors fully
indemnified on demand against all damages, losses, costs and expenses arising
from any failure of any Borrower to perform or discharge any purported
obligation or liability of the other Borrowers (or any of them) which would
have
been the subject of this Agreement or any other Security Document had it been
valid and enforceable and which is not or ceases to be valid and enforceable
against the other Borrowers (or any of them) on any ground whatsoever, whether
or not known to a Creditor including, without limitation, any irregular exercise
or absence of any corporate power or lack of authority of, or breach of duty
by,
any person purporting to act on behalf of the other Borrowers (or any of them)
(or any legal or other limitation, whether under the Limitation Acts or
otherwise or any disability or death, bankruptcy, unsoundness of mind,
insolvency, liquidation, dissolution, winding up, administration, receivership,
amalgamation, reconstruction or any other incapacity of any person whatsoever
(including, in the case of a partnership, a termination or change in the
composition of the partnership) or any change of name or style or constitution
of any Security Party)).
|
17.5.4
|
Liability
unconditional
|
None
of
the obligations or liabilities of the Borrowers under this Agreement or any
other Security Document shall be discharged or reduced by reason
of:
|
|
(a)
|
the
death, bankruptcy, unsoundness of mind, insolvency, liquidation,
dissolution, winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of any person whatsoever (including,
in
the case of a partnership, a termination or change in the composition
of
the partnership) or any change of name or style or constitution of
any
Borrower or any other person
liable;
|
|
|
(b)
|
the
Agent (acting on the instructions of the Majority Banks) granting
any
time, indulgence or concession to, or compounding with, discharging,
releasing or varying the liability of, any Borrower or any other
person
liable or renewing, determining, varying or increasing any accommodation,
facility or transaction or otherwise dealing with the same in any
manner
whatsoever or concurring in, accepting, varying any compromise,
arrangement or settlement or omitting to claim or enforce payment
from any
Borrower or any other person liable;
or
|
44
|
|
(c)
|
anything
done or omitted which but for this provision might operate to exonerate
the Borrowers or any of them.
|
|
17.5.5
|
Recourse
to other security
|
The
Creditors shall not be obliged to make any claim or demand or to resort to
any
Security Document or other means of payment now or hereafter held by or
available to it for enforcing this Agreement or any of the Security Documents
against any Borrower or any other person liable and no action taken or omitted
by any Creditor in connection with any such Security Document or other means
of
payment will discharge, reduce, prejudice or affect the liability of the
Borrowers under this Agreement and the Security Documents to which any of them
are, or are to be, a party.
|
17.5.6
|
Waiver
of Borrowers' rights
|
Each
Borrower agrees with each Creditor 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 not, without the
prior written consent of the Agent (acting on the instructions of the Majority
Banks):
|
|
(a)
|
exercise
any right of subrogation, reimbursement and indemnity against the
other
Borrowers (or any of them) or any other person liable under the Security
Documents;
|
|
|
(b)
|
demand
or accept repayment in whole or in part of any Indebtedness now or
hereafter due to such Borrower from the other Borrowers (or any of
them)
or from any other person liable or demand or accept any guarantee,
indemnity or other assurance against financial loss or any document
or
instrument created or evidencing an Encumbrance in respect of the
same or
dispose of the same;
|
|
|
(c)
|
take
any steps to enforce any right against the other Borrowers (or any
of
them) or any other person liable in respect of any such moneys;
or
|
|
|
(d)
|
claim
any set-off or counterclaim against the other Borrowers (or any of
them)
or any other person liable or claiming or proving in competition
with any
Creditor in the liquidation of the other Borrowers (or any of them)
or any
other person liable or have the benefit of, or share in, any payment
from
or composition with, the other Borrowers (or any of them) or any
other
person liable or any other Security Document now or hereafter held
by any
Creditor for any moneys owing under this Agreement or for the obligations
or liabilities of any other person liable but so that, if so directed
by
the Agent, it will prove for the whole or any part of its claim in
the
liquidation of the other Borrowers (or any of them) or other person
liable
on terms that the benefit of such proof and all money received by
it in
respect thereof shall be held on trust for the Banks and applied
in or
towards discharge of any moneys owing under this Agreement in such
manner
as the Agent (acting on the instructions of the Majority Banks) shall
deem
appropriate.
|
|
18
|
Governing
law and jurisdiction
|
|
18.1
|
Law
|
This
Agreement is governed by, and shall be construed in accordance with, English
law.
|
18.2
|
Submission
to jurisdiction
|
45
The
Borrowers, jointly and severally, agree, for the benefit of the Security
Trustee, the Banks and the Agent, that any legal action or proceedings arising
out of or in connection with this Agreement against the Borrowers or any of
them
or any of their assets may be brought in the English courts. Each of
the Borrowers irrevocably and unconditionally submits to the jurisdiction of
such courts and irrevocably designates, appoints and empowers X. Xxxxxxxx &
Co Ltd. at present of St Magnus House, 3 Xxxxx Xxxxxx Xxxxxx, Xxxxxx XX0X 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 Security Trustee, the Banks and the Agent to take
proceedings against the Borrowers or any of them 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 Borrowers or
any
of them may have against the Security Trustee, the Banks, the Swap Bank and
the
Agent arising out of or in connection with this Agreement.
IN WITNESS
whereof the parties to this Agreement have caused this Agreement to be duly
executed on the date first above written.
46
Schedule 1
The
Banks and their Commitments
|
Name
|
Address
and fax
|
Commitment
($)
|
|
KfW
|
Xxxxxxxxxxxxxxxxxxx
0-0
X00000
Xxxxxxxxx
xx Xxxx
Xxxxxxx
Xxxxxxxx of Germany
Fax: x00
00 0000 0000
|
00,000,000
|
|
TOTAL
|
35,000,000
|
47
Schedule 2
Form
of Drawdown Notice
(referred
to in clause 2.4)
|
To:
|
KfW
|
|
|
Xxxxxxxxxxxxxxxxxxx
0-0
|
|
|
X00000
|
|
|
Xxxxxxxxx
xx Xxxx
|
|
|
Xxxxxxx
Xxxxxxxx of Germany
|
[Date]
U.S.$35,000,000
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 [Grasmere] [Ullswater] [Windermere] Advance, namely $[·] on [·]
2007 and select [a
first Interest Period in respect thereof of [·] months]
[the first
Interest Period in respect thereof to expire on [·]]. The funds
should
be credited to [name and number of account] with
[details of bank in New York [·]]:
We
confirm that:
|
(a)
|
no
event or circumstance has occurred and is continuing which constitutes
a
Default;
|
|
(b)
|
the
representations and warranties contained in (i) clauses 7.1, 7.2
and
7.3(b) of the Loan Agreement and (ii) the other Security Documents,
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 [Grasmere] [Ullswater]
[Windermere] Advance 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 from
that
described by us to the Agent 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
|
||
|
GRASMERE
MARITIME LIMITED
|
||
|
For
and on behalf of
|
||
|
ULLSWATER
MARITIME LIMITED
|
||
|
For
and on behalf of
|
||
|
WINDERMERE
MARITIME LIMITED
|
||
48
Schedule 3
Documents
and evidence required as conditions precedent to making available the
Commitment
(referred
to in clause 9.1)
Part
1
|
(a)
|
Constitutional
documents
|
Copies,
certified by an officer 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;
|
(b)
|
Corporate
authorisations
|
copies
of
resolutions of the directors or, as the case may be, the shareholders of each
Security Party approving such of the Underlying Documents and the Security
Documents to which such Security Party is, or is to be, party and authorising
the signature, delivery and performance of such Security Party's obligations
thereunder, certified (in a certificate dated no earlier than five Banking
Days
prior to the date of this Agreement) by an officer of such Security Party
as:
|
|
(a)
|
being
true and correct;
|
|
|
(b)
|
being
duly passed at meetings of the directors and shareholders duly convened
and held;
|
|
|
(c)
|
not
having been amended, modified or revoked;
and
|
|
|
(d)
|
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;
|
(c)
|
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 Banking Days prior to the date of this Agreement) by an officer of such
Security Party as being the true signatures of such persons;
|
(d)
|
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 Banking
Days prior to the date of this Agreement) by an officer of such Security Party
to be true, complete and up to date;
|
(e)
|
Borrowers’
consents and approvals
|
a
certificate (dated no earlier than the date of this Agreement) from an officer
of each of the Borrowers that no consents, authorisations, licences or approvals
are necessary for that Borrower to authorise or are required by that Borrower
in
connection with the borrowing by that Borrower of the Loan pursuant to this
Agreement or the execution, delivery and performance of that Borrowers’ Security
Documents;
49
|
(f)
|
Other
consents and approvals
|
a
certificate (dated no earlier than five Banking Days prior to the date of this
Agreement) from an officer of each Security Party (other than the Borrowers)
that no consents, authorisations, licences or approvals are necessary for such
Security Party to guarantee and/or grant security for the borrowing by the
Borrowers of the Commitment pursuant to this Agreement and execute, deliver
and
perform the Security Documents insofar as such Security Party is a party
thereto;
|
(g)
|
Certified
Underlying Documents
|
a
copy,
certified (in a certificate dated no earlier than the date of this Agreement)
as
a true and complete copy by an officer of the relevant Borrower of each
Underlying Document (including, but not limited to, the Charters in respect
of
any Ship and any novation agreement or addendum in connection with any Charter),
each in a form and substance acceptable to the Agent together with evidence
satisfactory to the Agent that each such document is in full force and effect
and that there have been no breaches of the terms thereof or any default
thereunder;
|
(h)
|
Security
Documents
|
the
Master Swap Agreement, the Swap Assignment, the Account Pledge and the Corporate
Guarantee, each duly executed;
|
(i)
|
Borrowers'
process agent
|
a
letter
from each Borrower's agent for receipt of service of proceedings referred to
in
clause 18.2 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
such Borrower's agent;
|
(j)
|
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;
|
(k)
|
“Know
your customer”, due diligence
etc.
|
evidence
that all information required in relation to any Security Party and/or the
directors and the ultimate beneficial owners thereof in order for each Bank
to
complete its due diligence formalities and “know your customer” requirements in
accordance with applicable laws, regulations or internal guidelines of such
Bank
in connection with this Agreement and the other Security Documents has been
provided and is satisfactory in all respects to each relevant Bank;
|
(l)
|
No
litigation or other event
|
evidence
in form and substance satisfactory to the Agent that there is no event or
existing or threatened litigation, arbitration or similar proceedings by any
person with respect to the transactions contemplated by the Security Documents
or which the Agent shall in its sole discretion determine is reasonably likely
to have a materially adverse effect on the business, property, assets,
liabilities, financial condition or otherwise or prospects of the Borrowers
or
the Borrowers’ Group;
|
(m)
|
Additional
documents and evidence
|
to
the
extent required by any change in applicable law and regulation or any changes
in
the Agent’s or any Bank’s own internal guidelines since the date on which the
applicable documents and evidence were delivered to the Agent and Banks pursuant
to clause 8.1.7, such further documents and evidence as the Agent and/or any
Bank shall require to identify the Borrowers and the other Security Parties
and
any other persons involved or affected by the transaction(s) contemplated by
this Agreement; and
50
|
(n)
|
Accounts
|
evidence
that the Earnings Account has been opened, together with duly completed mandate
forms in respect thereof.
51
Part
2
Documents
and evidence required as conditions precedent to each Advance being
made
|
(a)
|
Drawdown
Notice
|
The
relevant Drawdown Notice duly executed;
|
(b)
|
Conditions
precedent
|
evidence
that the conditions precedent set out in Part 1 of Schedule 3 (remain or, as
appropriate, will be) fully satisfied;
|
(c)
|
Ship
conditions
|
evidence
that the Ship relevant to the Advance which is to be made:
|
|
(i)
|
Registration
and Encumbrances
|
is
permanently or provisionally registered in the name of the relevant Borrower
under the laws and flag of the Flag State through the Registry and that such
Ship and its Earnings, Insurances and Requisition Compensation (as defined
in
the relevant Ship Security Documents) are free of Encumbrances;
|
|
(ii)
|
Classification
|
maintains
the relevant Classification free of all requirements and recommendations of
the
Classification Society;
|
|
(iii)
|
Insurance
|
is
insured in accordance with the provisions of the relevant Ship Security
Documents and all requirements of such Ship Security Documents in respect of
such insurance have been complied with (including without limitation
confirmation from the protection and indemnity association or other insurer
with
which such 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 such Ship); and
|
(d)
|
Title
and deletion
|
evidence
that the transfer of title to such Ship from the relevant Seller to the relevant
Borrower has been duly recorded with the Registry free from Encumbrances and
that the prior registration of such Ship in the name of the relevant Seller
has
been or, within a period of thirty (30) days following the Delivery Date of
such
Ship, will be cancelled and that no Encumbrances are registered against such
Ship on such prior register;
|
(e)
|
Security
Documents
|
the
Ship
Security Documents for such Ship duly executed;
|
(f)
|
Mortgage
registration
|
evidence
that the Mortgage over such Ship has been permanently or provisionally
registered against such Ship under the laws and flag of the Flag State through
the Registry;
52
|
(g)
|
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 relevant Ship Security
Documents;
|
(h)
|
Liberian
opinion
|
an
opinion of Xxxxxx and Xxxxxx, special legal advisers on matters of Liberian
law
to the Agent;
|
(i)
|
Dutch
Opinion
|
an
opinion of Xxxxxx Xxxx, special legal advisers on matters of Dutch law to the
Agent;
|
(j)
|
Bahamas
opinion
|
an
opinion of Xxxxxx Xxxxx, special legal advisers on matters of Bahamas law to
the
Agent;
|
(k)
|
English
opinion
|
an
opinion of Xxxxxx Xxxx special legal advisers on matters of English law to
the
Agent;
|
(l)
|
Further
opinions
|
any
such
further opinion as may be required by the Agent;
|
(m)
|
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;
|
(n)
|
Insurance
opinion
|
an
opinion (at the expense of the Borrowers) from Junge & Co to the Agent, on
the insurances effected or to be effected in respect of such Ship upon and
following the relevant Drawdown Date;
|
(o)
|
Insurance
undertakings
|
confirmations
from the relevant P&I Club, War Risks Club, brokers/insurers confirming that
Letters of Undertaking will be issued in respect of the relevant Ship in a
form
and substance acceptable to the Agent in its sole discretion;
|
(p)
|
SMC/DOC/ISSC
|
a
copy,
certified as a true and complete copy by an officer of the relevant Borrower
of
the DOC issued to the Operator and the SMC and the ISSC for such
Ship;
|
(q)
|
Certificates
of financial
responsibility
|
a
copy of
a certificate of financial responsibility in relation to the relevant Ship
complying with the requirements of the United States Oil Pollution Xxx 0000
or
the United States Comprehensive Environmental Response Compensation Liability
Act 1980 together with evidence of approval thereof by the relevant regulatory
authorities or a letter from the relevant Borrower confirming that it is not
intended that the Ship trade to the USA, and if it does, the relevant Borrower
will ensure compliance with the above regulations;
53
|
(r)
|
Valuations
|
a
valuation (dated not more than sixty (60) days prior to the Drawdown Date of
the
Advance which is to be made) of the Ship relevant to such Advance by an
independent firm of shipbrokers appointed by the Agent and made in the manner
specified in clause 8.2.2 demonstrating the market value of such
Ship;
|
(s)
|
Survey
report
|
a
survey
report at the expense of the Borrowers by surveyors appointed by the
Agent and dated not earlier than thirty (30) days prior to the Drawdown Date
of
the Advance which is to be made, evidencing that the Ship relevant to such
Advance is seaworthy in every respect;
|
(t)
|
Certificate
of financial
responsibility
|
a
copy of
a certificate of financial responsibility in relation to the relevant Ship
complying with the requirements of the United States Oil Pollution Xxx 0000
or
the United States Comprehensive Environmental Response Compensation Liability
Act 1980 together with evidence of approval thereof by the relevant regulatory
authorities or a letter from the relevant Borrower confirming that it is not
intended that the Ship trade to the USA, and if it does, the relevant Borrower
will ensure compliance with the above regulations;
|
(u)
|
Further
matters/opinions
|
any
such
other matter or further opinion as may be required by the Agent;
|
(v)
|
Equity
contributions
|
evidence
that the relevant Borrower has deposited into the Earnings Account its equity
contribution in order to meet the relevant Contract Price in a manner acceptable
to the Agent in its sole discretion and in an amount which when aggregated
with
the relevant Advance is at least equal to the relevant Contract Price (and
payments on account of unbroached bunkers and lubricating oils);
|
(w)
|
Material
adverse change
|
evidence
satisfactory to the Agent (acting reasonably) that no material adverse change
shall have occurred in the business or financial condition of the Borrowers
or
the Corporate Guarantor from that described to the Agent and/or the Banks in
the
negotiations of this Agreement which could materially and adversely affect
the
abilities of the Borrowers or the Corporate Guarantee to comply with their
obligations under the Security Document to which they are a party;
and
|
(x)
|
Fees
|
evidence
that any fees due pursuant to clause 5.1.1 and any commitment commission due
pursuant to clause 5.1.3 have been paid in full.
54
Schedule 4
Form
of Substitution Certificate
[Note:
Banks are advised not to employ Substitution Certificates or otherwise to
assign, novate or transfer interests in the Agreement without first ensuring
that the transaction complies with all applicable laws and regulation in all
applicable jurisdictions.]
|
To:
|
KfW
on its own behalf, as agent for the Banks party to the Agreement
defined
below and on behalf of [·]
and [·].
|
|
Attention:
|
[Date]
|
Substitution
Certificate
This
Substitution Certificate relates to a $35,000,000 Loan
Facility Agreement (the
“Agreement”) dated [·]
2007 made between GRASMERE MARITIME LIMITED,
ULLSWATER MARITIME LIMITED and WINDERMERE MARITIME LIMITED as borrowers, the
banks whose respective names and addresses are set out in Schedule 1 thereto
as
Banks, KfW as Swap Bank, Arranger, Security Trustee and Agent.
|
1
|
[name
of Existing Bank] (the “Existing Bank”) (a)
confirms the accuracy of the summary of its participation in the
Agreement
set out in the schedule below; and (b) requests [name of
Substitute Bank] (the “Substitute”) to accept by
way of novation the portion of such participation specified in the
schedule hereto by counter-signing and delivering this Substitution
Certificate to the Agent at its address for the service of notices
specified in the Agreement.
|
|
2
|
The
Substitute hereby requests the Agent (on behalf of itself, the Borrowers
and the Banks and all other parties to the Agency Agreement to accept
this
Substitution Certificate as being delivered to the Agent pursuant
to and
for the purposes of clause 15.4 of the Agreement, so as to take
effect in accordance with the respective terms thereof on [date of
transfer] (the “Effective Date”) or on such
later date as may be determined in accordance with the respective
terms
thereof.
|
|
3
|
The
Agent (on behalf of itself, the Borrowers, the Banks and all other
parties
to the Agency Agreement) confirms the novation effected by this
Substitution Certificate pursuant to and for the purposes of
clause 15.4 of the Agreement so as to take effect in accordance with
the respective terms thereof.
|
|
4
|
The
Substitute confirms:
|
|
|
(a)
|
that
it has received a copy of the Agreement and each of the other Security
Documents and all other documentation and information required by
it in
connection with the transactions contemplated by this Substitution
Certificate;
|
|
|
(b)
|
that
it has made and will continue to make its own assessment of the validity,
enforceability and sufficiency of the Agreement, the other Security
Documents and this Substitution Certificate and has not relied and
will
not rely on the Existing Bank or the Agent or any statements made
by
either of them in that respect;
|
|
|
(c)
|
that
it has made and will continue to make its own credit assessment of
the
Borrowers and has not relied and will not rely on the Existing Bank
or the
Agent or any statements made by either of them in that respect;
and
|
|
|
(d)
|
that,
accordingly, neither the Existing Bank nor the Agent shall have any
liability or responsibility to the Substitute in respect of any of
the
foregoing matters.
|
55
|
5
|
Execution
of this Substitution Certificate by the Substitute constitutes its
representation to the Existing Bank and all other parties to the
Agreement
that it has power to become party to the Agreement as a Bank on the
terms
herein and therein set out and has taken all necessary steps to authorise
execution and delivery of this Substitution
Certificate.
|
|
6
|
The
Existing Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or any of the other Security
Documents or any document relating thereto and assumes no responsibility
for the financial condition of the Borrowers or any other party to
the
Agreement or any of the other Security Documents or for the performance
and observance by the Borrowers or any other such party of any of
its
obligations under the Agreement or any of the other Security Documents
or
any document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
|
|
7
|
The
Substitute hereby undertakes to the Existing Bank, the Borrowers
and the
Agent and each of the other parties to the Agreement that it will
perform
in accordance with their terms all those obligations which by the
respective terms of the Agreement will be assumed by it after acceptance
of this Substitution Certificate by the
Agent.
|
|
8
|
All
terms and expressions used but not defined in this Substitution
Certificate shall bear the meaning given to them in the
Agreement.
|
|
9
|
This
Substitution Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
|
Note: This
Substitution Certificate is not a security, bond, note, debenture, investment
or
similar instrument.
AS
WITNESS the hands of the authorised signatories of the parties hereto
on the date appearing below.
56
The
Schedule
|
Commitment:
$
|
Portion
Transferred: $
|
|
Contribution:
$
|
Portion
Transferred: $
|
|
Next
Interest Payment Date:
|
|
57
Administrative
Details of Substitute
Lending
Office:
Account
for payments:
Telephone:
Telex:
Attention:
|
[Existing
Bank]
|
[Substitute]
|
||||
|
By:
|
By:
|
||||
|
Date:
|
Date:
|
||||
The
Agent
By:
|
on
its own behalf
|
and
on
behalf of the Borrowers and the Banks and all other parties to the Agency
Agreement
Date:
58
Schedule 5
Form
of Master Swap Agreement
59
Schedule 6
Form
of Corporate Guarantee
60
Schedule 7
Form
of Mortgage
61
Schedule 8
Form
of Deed of Covenant
62
Schedule 9
Form
of Manager’s Undertaking
63
Schedule 10
Form
of Charter Assignment
64
Schedule 11
Form
of Swap Assignment
65
Schedule 12
Form
of Account Pledge
66
BORROWERS
|
SIGNED
by
|
)
|
|||
|
for
and on behalf of
|
)
|
|
||
|
GRASMERE
MARITIME LIMITED
|
)
|
Attorney-in-Fact
|
||
|
pursuant
to a power of attorney
|
)
|
|||
|
dated 2007
|
)
|
|||
|
SIGNED
by
|
)
|
|||
|
for
and on behalf of
|
)
|
|
||
|
ULLSWATER
MARITIME LIMITED
|
)
|
Attorney-in-Fact
|
||
|
pursuant
to a power of attorney
|
)
|
|||
|
dated 2007
|
)
|
|||
|
SIGNED
by
|
)
|
|||
|
for
and on behalf of
|
)
|
|
||
|
WINDERMERE
MARITIME LIMITED
|
)
|
Attorney-in-Fact
|
||
|
pursuant
to a power of attorney
|
)
|
|||
|
dated 2007
|
)
|
|||
|
CREDITORS
|
||||
|
BANKS
|
||||
|
SIGNED
by
|
)
|
|
||
|
for
and on behalf of
|
)
|
Authorised
Signatory
|
||
|
KfW
|
)
|
|||
|
as
authorised signatories
|
)
|
|
||
|
)
|
Authorised
Signatory
|
|||
|
ARRANGER
|
||||
|
SIGNED
by
|
)
|
|
||
|
for
and on behalf of
|
)
|
Authorised
Signatory
|
||
|
KfW
|
)
|
|||
|
as
authorised signatories
|
)
|
|
||
|
Authorised
Signatory
|
67
|
AGENT
|
||||
|
SIGNED
by
|
)
|
|
||
|
for
and on behalf of
|
)
|
Authorised
Signatory
|
||
|
KfW
|
)
|
|||
|
as
authorised signatories
|
)
|
|
||
|
)
|
Authorised
Signatory
|
|||
|
SECURITY
TRUSTEE
|
||||
|
SIGNED
by
|
)
|
|
||
|
for
and on behalf of
|
)
|
Authorised
Signatory
|
||
|
KfW
|
)
|
|||
|
as
authorised signatories
|
)
|
|
||
|
)
|
Authorised
Signatory
|
68
|
Dated July
30, 2007
|
||
|
(1)
|
||
|
and
|
||
|
KfW
|
(2)
|
|
|
(as
Security Trustee)
|
||
|
|
|
Clause
|
Page
|
|
|
1
|
Interpretation
|
1
|
|
2
|
Guarantee
|
3
|
|
3
|
Payments
and Taxes
|
6
|
|
4
|
Representations
and warranties
|
6
|
|
5
|
Undertakings
|
9
|
|
6
|
Set-off
|
12
|
|
7
|
Benefit
of this Guarantee
|
12
|
|
8
|
Notices
and other matters
|
12
|
|
9
|
Law
and jurisdiction
|
14
|
|
THIS
GUARANTEE is dated
|
2007
and made BETWEEN:
|
|
(1)
|
MC
SHIPPING INC. as guarantor (the “Guarantor”);
and
|
|
(2)
|
KfW
(the “Security Trustee”) as agent, security
agent and trustee, for the benefit of itself and each of the other
Creditors (as defined below).
|
WHEREAS:
|
(A)
|
by
a facility agreement dated
2007
(the “Facility Agreement”) and made between (1) Grasmere
Maritime Limited, Ullswater Maritime Limited and Windemere Maritime
Limited as joint and several borrowers
(the “Borrowers”), (2) the banks and financial
institutions whose names and addresses are set out in Schedule 1
to the
Facility Agreement (the “Banks”), (3) KfW as arranger
(the “Arranger”), (4) KfW as swap bank (the “Swap
Bank”), (5) KfW as agent (the “Agent”), and
(6) KfW (the “Security Trustee”) and together with the
Agent, Banks, the Arranger and the Swap Bank, the
“Creditors” and each a “Creditor”) as
agent, security agent and trustee on behalf of the Creditors, the
Banks
have agreed, upon and subject to the terms and conditions of the
Facility
Agreement, to make available to the Borrowers as joint and several
borrowers, a loan facility of up to thirty five million ($35,000,000)
(the
“Loan”);
|
|
(B)
|
by
a master swap agreement
dated 2007
and the Schedule thereto made between (1) the Borrowers and (2) the
Swap
Bank comprising an ISDA Master Agreement in the form or substantially
in
the form set out as Schedule 5 to the Facility Agreement together
with any
Confirmations (as defined therein) supplemental thereto (the
“Master Swap Agreement”), the Swap Bank agreed the terms
and conditions upon which it would enter into an interest rate
swap transaction(s) with the Borrowers in respect of the Loan
(whether in whole or in part as the case may be from time to time);
and
|
|
(C)
|
the
execution and delivery of this Guarantee is one of the conditions
precedent to the Banks making their Commitments available under the
Facility Agreement.
|
IT
IS AGREED as follows:
Interpretation
Defined
expressions
In
this
Guarantee, unless the context otherwise requires or unless otherwise defined
in
this Guarantee, words and expressions defined in the Facility Agreement and
used
in this Guarantee shall have the same meaning where used in this
Guarantee.
Definitions
In
this
Guarantee, unless the context otherwise requires:
“Charters”
means:
|
|
(a)
|
in
respect of the GRASMERE, the time charter dated 13 June 2007 and
made
between the Grasmere Borrower and Vitol
S.A.;
|
|
|
(b)
|
in
relation to the ULLSWATER, the time charter dated 24 March 1995 and
made
between the Ullswater Seller and Vitol S.A. supplemented and amended
by
addendum 1 dated 26 August 1996, addendum 2 dated 19 February 1997,
addendum 3 dated 30 July 1998, addendum 4 dated 21 September 1998,
addendum 5 dated 24 April 2002, addendum 6 dated 30 January 2006,
addendum
7 dated 23 January 2007, addendum 8 dated 20 March 2007, each made
between
the Ullswater Seller and Vitol S.A. and the triparty agreement dated
13
June 2007 made between the Windermere Seller, the Grasmere Seller,
the
Ullswater Seller, the Corporate Guarantor and Vitol S.A.;
and
|
|
|
(c)
|
in
relation to the WINDERMERE, the time charter dated 13 June 2007 and
made
between the Windermere Borrower and Vitol
S.A,
|
1
and
“Charter” means any of them;
“Collateral
Instruments” means notes, bills of exchange, certificates of deposit
and other negotiable and non-negotiable instruments, guarantees, indemnities
and
other assurances against financial loss and any other documents or instruments
which contain or evidence an obligation (with or without security) to pay,
discharge or be responsible directly or indirectly for, any indebtedness or
liabilities of the Borrowers or any other person liable and includes any
documents or instruments creating or evidencing a mortgage, charge (whether
fixed or floating), pledge, lien, hypothecation, assignment, trust arrangement
or security interest of any kind;
“Guaranteed
Liabilities” means all moneys, obligations and liabilities expressed to
be guaranteed by the Guarantor in clause 2.1;
“Incapacity”
means, in relation to a person, the death, bankruptcy, unsoundness of mind,
insolvency, liquidation, dissolution, winding-up, administration, receivership,
amalgamation, reconstruction or other incapacity of that person whatsoever
(and,
in the case of a partnership, includes the termination or change in the
composition of the partnership); and
“Relevant
Jurisdiction” means any jurisdiction in which or where the Guarantor is
incorporated, resident, domiciled, has a permanent establishment, carries on,
or
has a place of business or is otherwise effectively connected.
Headings
Clause headings
and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Guarantee.
Constructions
of certain terms
In
this
Guarantee, unless the context otherwise requires:
references
to clauses are to be construed as references to the clauses of this
Guarantee;
references
to (or to any specified provision of) this Guarantee or any other document
shall
be construed as references to this Guarantee, that provision or that document
as
in force for the time being and as amended from time to time in accordance
with
the terms thereof, or, as the case may be, with the agreement of the relevant
parties;
words
importing the plural shall include the singular and vice versa;
references
to a time of day are to London time;
references
to a person shall be construed as including references to an individual, firm,
company, corporation, unincorporated body of persons or any Government
Entity;
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
references
to any enactment, amended or extended shall be deemed to include reference
to
such enactment as re-enacted, amended or extended.
Contracts
(Rights of Third Parties) Xxx 0000
No
term
of this Guarantee is enforceable under the Contracts (Rights of Third Parties)
Xxx 0000 by a person who is not a party to this Guarantee.
2
Guarantee
Covenant
to pay
In
consideration of the Banks making or continuing loans, advances or guarantees
to, or otherwise giving credit or granting banking facilities or accommodation
or granting time to, the Borrowers pursuant to the Facility Agreement and for
the Swap Bank entering into the Master Swap Agreement, the Guarantor hereby
guarantees to pay to the Security Trustee, for the account of the Creditors
or
any of them, on first demand by the Security Trustee all moneys and discharge
all obligations and liabilities now or hereafter due, owing or incurred by
the
Borrowers to the Creditors or any of them under or pursuant to the Facility
Agreement, the Master Swap Agreement and the other Security Documents when
the
same become due for payment or discharge whether by acceleration or otherwise,
and whether such moneys, obligations or liabilities are express or implied,
present, future or contingent, joint or several, incurred as principal or
surety, originally owing to the Creditors or any of them or purchased or
otherwise acquired by them or it, denominated in Dollars or in any other
currency, or incurred on any banking account or in any other manner
whatsoever. Provided however, that the Guarantor will not be obliged
or required to pay out any moneys under this Guarantee until the earlier of:
(a)
the date on which the Charters (or any of them) are terminated (whether by
effluxion of time or otherwise), suspended, novated, extended beyond their
original term in any way (including by way of any optional extension granted
pursuant to the terms of a Charter), or rescinded or (b) 29 February
2008.
Such
liabilities shall, without limitation, include interest (as well after as before
judgment) to date of payment at such rates and upon such terms as may from
time
to time be agreed, commission, fees and other charges and all legal and other
costs, charges and expenses on a full and unqualified indemnity basis which
may
be incurred by the Creditors in relation to any such moneys, obligations or
liabilities or generally in respect of the Borrowers, the Guarantor or any
Collateral Instrument.
Guarantor
as principal debtor; indemnity
As
a
separate and independent stipulation, the Guarantor agrees that if any purported
obligation or liability of the Borrowers (or any of them) which would have
been
the subject of this Guarantee had it been valid and enforceable is not or ceases
to be valid or enforceable against the Borrowers (or any of them) on any ground
whatsoever whether or not known to the Creditors or any of them (including,
without limitation, any irregular exercise or absence of any corporate power
or
lack of authority of, or breach of duty by, any person purporting to act on
behalf of the Borrowers (or any of them) or any legal or other limitation,
whether under the Limitation Acts or otherwise or any disability or Incapacity
or any change in the constitution of the Borrowers (or any of them)) the
Guarantor shall nevertheless be liable to the Creditors in respect of that
purported obligation or liability as if the same were fully valid and
enforceable and the Guarantor was the principal debtor in respect
thereof. The Guarantor hereby agrees to keep the Creditors fully
indemnified on demand against all damages, losses, costs and expenses arising
from any failure of the Borrowers (or any of them) to perform or discharge
any
such purported obligation or liability.
Statements
of account conclusive
Any
statement of account, signed as correct by an officer of the Security Trustee,
showing the amount of the Guaranteed Liabilities shall, in the absence of
manifest error, be binding and conclusive on and against the
Guarantor.
No
security taken by Guarantor
The
Guarantor warrants that it has not taken or received, and undertake that until
all the Guaranteed Liabilities of the Borrowers have been paid or discharged
in
full, it will not take or receive, the benefit of any security from the
Borrowers (or any of them) or any other person in respect of its obligations
under this Guarantee.
Interest
The
Guarantor agrees to pay interest on each amount demanded of it under this
Guarantee from the date of such demand until payment (as well after as before
judgment) at the rate specified in clause 3.4 of the Facility Agreement
which shall apply to this Guarantee mutatis mutandis. Such interest
shall be compounded at the end of each period determined for this purpose by
the
Security Trustee in the event of it not being paid when demanded but without
prejudice to the Creditors’ right to require payment of such
interest.
3
Continuing
security and other matters
This
Guarantee shall:
secure
the ultimate balance from time to time owing to the Creditors or any of them
by
the Borrowers (or any of them) and shall be a continuing security,
notwithstanding any settlement of account or other matter
whatsoever;
be
in
addition to any present or future Collateral Instrument, right or remedy held
by
or available to the Creditors or any of them; and
not
be in
any way prejudiced or affected by the existence of any such Collateral
Instrument, rights or remedies or by the same becoming wholly or in part void,
voidable or unenforceable on any ground whatsoever or by the Security Trustee
or
any of the other Creditors dealing with, exchanging, varying or failing to
perfect or enforce any of the same or giving time for payment or indulgence
or
compounding with any other person liable.
Liability
unconditional
The
liability of the Guarantor shall not be affected nor shall this Guarantee be
discharged or reduced by reason of:
the
Incapacity or any change in the name, style or constitution of the Borrowers
(or
any of them) or any other person liable;
the
Security Trustee or any of the other Creditors granting any time, indulgence
or
concession to, or compounding with, discharging, releasing or varying the
liability of, the Borrowers (or any of them) or any other person liable or
renewing, determining, varying or increasing any accommodation, facility or
transaction or otherwise dealing with the same in any manner whatsoever or
concurring in, accepting or varying any compromise, arrangement or settlement
or
omitting to claim or enforce payment from the Borrowers (or any of them) or
any
other person liable; or
any
act
or omission which would not have discharged or affected the liability of any
Guarantor had it been a principal debtor instead of a Guarantor or by anything
done or omitted which but for this provision might operate to exonerate the
Guarantor.
Collateral
Instruments
None
of
the Creditors shall be obliged to make any claim or demand on the Borrowers
(or
any of them) or to resort to any Collateral Instrument or other means of payment
now or hereafter held by or available to them or it before enforcing this
Guarantee and no action taken or omitted by the Creditors in connection with
any
such Collateral Instrument or other means of payment shall discharge, reduce,
prejudice or affect the liability of the Guarantor under this Guarantee nor
shall the Creditors be obliged to apply any money or other property received
or
recovered in consequence of any enforcement or realisation of any such
Collateral Instrument or other means of payment in reduction of the Guaranteed
Liabilities.
Waiver
of Guarantor’s rights
Until
all
the Guaranteed Liabilities have been paid, discharged or satisfied in full
(and
notwithstanding payment of a dividend in any liquidation or under any compromise
or arrangement) the Guarantor agrees that, without the prior written consent
of
the Security Trustee, it will not:
4
exercise
its rights of subrogation, reimbursement and indemnity against the Borrowers
(or
any of them) or any other person liable;
demand
or
accept repayment in whole or in part of any indebtedness now or hereafter due
to
the Guarantor from the Borrowers (or any of them) or from any other person
liable or demand or accept any Collateral Instrument in respect of the same
or
dispose of the same;
take
any
step to enforce any right against the Borrowers (or any of them) or
any other person liable in respect of any Guaranteed Liabilities;
or
claim
any
set-off or counterclaim against the Borrowers (or any of them) or any other
person liable or claim or prove in competition with the Creditors or any of
them
in the liquidation of the Borrowers (or any of them) or any other person liable
or have the benefit of, or share in, any payment from or composition with,
the
Borrowers (or any of them) or any other person liable or any other Collateral
Instrument now or hereafter held by the Creditors for any Guaranteed Liabilities
or for the obligations or liabilities of any other person liable but so that,
if
so directed by the Security Trustee, it will prove for the whole or any part
of
its claim in the liquidation of the Borrowers (or any of them) or any other
person liable on terms that the benefit of such proof and of all money received
by it in respect thereof shall be held on trust for the Creditors and applied
in
or towards discharge of the Guaranteed Liabilities in such manner as the
Security Trustee shall deem appropriate.
Suspense
accounts
Any
money
received in connection with this Guarantee (whether before or after any
Incapacity of the Borrowers (or any of them) or the Guarantor) may be placed
to
the credit of a suspense account with a view to preserving the rights of the
Creditors to prove for the whole of their respective claims against the
Borrowers (or any of them) or any other person liable or may be applied in
or
towards satisfaction of such of the Guaranteed Liabilities as the Security
Trustee may from time to time conclusively determine in its absolute
discretion.
Settlements
conditional
Any
release, discharge or settlement between the Guarantor and any of the Creditors
shall be conditional upon no security, disposition or payment to the Creditors
by the Borrowers (or any of them) or any other person liable being void, set
aside or ordered to be refunded pursuant to any enactment or law relating to
bankruptcy, liquidation, administration or insolvency or for any other reason
whatsoever and if such condition shall not be fulfilled the Creditors shall
be
entitled to enforce this Guarantee subsequently as if such release, discharge
or
settlement had not occurred and any such payment had not been made.
Guarantor
to deliver up certain property
If,
contrary to clauses 0 or 0, the Guarantor takes or receives the benefit of
any
security or receives or recovers any money or other property, such security,
money or other property shall be held on trust for the Security Trustee and
shall be delivered to the Security Trustee on demand.
Retention
of this Guarantee
The
Creditors shall be entitled to retain this Guarantee after as well as before
the
payment or discharge of all the Guaranteed Liabilities for such period as the
Security Trustee may reasonably determine.
Payments
and Taxes
No
set-off or counterclaim
All
payments to be made by the Guarantor under this Guarantee shall be made in
full,
without any set-off or counterclaim whatsoever and, subject as provided in
clause 0, free and clear of any deductions or withholdings, in Dollars on the
due date to the account of the Agent referred to in clause 6.1 of the
Facility Agreement. Save as otherwise expressly provided by the
Facility Agreement such payments shall be for the account of the Banks and
the
Swap Bank and the Security Trustee shall forthwith distribute such payments
in
like funds as are received by the Security Trustee to the Banks rateably in
accordance with their Commitments or Contributions, as the case may be or to
the
Swap Bank.
5
Grossing
up for Taxes
If
at any
time the Guarantor is required to make any deduction or withholding in respect
of Taxes from any payment due under this Guarantee for the account of any
Creditor (or if the Security Trustee is required to make any such deduction
or
withholding from a payment to a Creditor), the sum due from the Guarantor in
respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, each Creditor 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 Guarantor shall jointly and severally indemnify each Creditor
against any losses or costs incurred by any of them by reason of any failure
of
the Guarantor 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 Guarantor shall promptly deliver to the Security Trustee
any receipts, certificates or other proof evidencing the amounts (if any) paid
or payable in respect of any deduction or withholding as aforesaid.
Claw-back
of Tax benefit
If,
following any such deduction or withholding as is referred to in clause 3.2
from
any payment by the Borrowers (or any of them), any Creditor shall receive or
be
granted a credit against or remission for any Taxes payable by it, the relevant
Creditor shall, subject to the Borrowers (or any of them) having made any
increased payment in accordance with clause 3.2 and to the relevant Creditor
can
do so without prejudicing the retention of the amount of such credit or
remission and without prejudice to the relevant Creditor to obtain any other
relief or allowance which may be available to it, reimburse the Borrowers (or
any of them) with such amounts as the relevant Creditor shall in its absolute
discretion certify to be the proportion of such credit or remission as will
leave the relevant Creditor (after such reimbursement) in no worse position
that
it would have been in had there been no such deduction or withholding from
the
payment by the Borrowers (or any of them) as aforesaid. Such
reimbursement shall be made forthwith upon the relevant Creditor certifying
that
the amount of such credit or remission has been received by
it. Nothing contained in this Agreement shall oblige relevant
Creditor to rearrange its tax affairs or to disclose any information regarding
its tax affairs and computations. Without prejudice to the generality of the
foregoing, the Borrowers (or any of them) shall not, by virtue of this clause
3.3, be entitled to enquire about any Creditor’s (as the case may be) tax
affairs.
Representations
and warranties
Continuing
representations and warranties
The
Guarantor represents and warrants that:
Due
incorporation
the
Guarantor and its Subsidiaries are duly incorporated and validly existing under
the laws of the respective countries of their incorporation as limited liability
companies and have power to carry on their respective businesses as they are
now
being conducted and to own their respective property and other
assets;
Corporate
power to Guarantee
the
Guarantor has power to execute, deliver and perform its obligations under this
Guarantee; 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 Guarantor to borrow or give guarantees will
be
exceeded as a result of this Guarantee;
6
Binding
obligations
this
Guarantee constitutes valid and legally binding obligations of the Guarantor
enforceable in accordance with its terms;
No
conflict with other obligations
the
execution and delivery of, the performance of its obligations under, and
compliance with the provisions of, this Guarantee by the Guarantor will not
(a) contravene any existing applicable law, statute, rule or regulation or
any judgment, decree or permit to which the Guarantor is subject,
(b) 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
Guarantor is a party or is subject or by which it or any of its property is
bound, (c) contravene or conflict with any provision of the Guarantor’s
Articles of Incorporation/By-laws/Statutes or other constitutional
documents or (d) result in the creation or imposition of or oblige the
Guarantor or any of its Subsidiaries to create any Encumbrance on that
Guarantor's or its Subsidiaries’ undertakings, assets, rights or
revenues;
No
litigation
no
litigation, arbitration or administrative proceeding is taking place, pending
or, to the knowledge of the officers of the Guarantor, threatened against the
Guarantor or any of its Subsidiaries which could have a material adverse effect
on the business, assets or financial condition of the Guarantor or any of its
Subsidiaries;
Financial
statements correct and complete
the
audited financial statements of the Guarantor, the audited consolidated
financial statements of the Guarantor and its Subsidiaries in respect of the
financial year ended on 31 December 2006 and the Form 10-Q reports of the
Guarantor as delivered to the Security Trustee have been prepared in accordance
with generally accepted international accounting principles and practices which
have been consistently applied and present fairly and accurately the financial
position of the Guarantor and the consolidated financial position of the
Guarantor and its Subsidiaries as at such date and the results of the operations
of the Guarantor and the consolidated results of the operations of the Guarantor
and its Subsidiaries respectively for the financial year or, in the case of
the
Form 10-Q reports, the financial quarter to which they relate ended on such
date
and, as at such date, neither the Guarantor nor any of its Subsidiaries 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;
No
filings required
it
is not
necessary to ensure the legality, validity, enforceability or admissibility
in
evidence of this Guarantee that it 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 this Guarantee and
this Guarantee is in proper form for its enforcement in the courts of each
Relevant Jurisdiction;
Choice
of law
the
choice by the Guarantor of English law to govern this Guarantee and the
submission by the Guarantor to the non-exclusive jurisdiction of the English
courts is valid and binding;
7
No
immunity
neither
the Guarantor nor any of its 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 judgment, execution
or
other enforcement); and
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 of the Guarantor to authorise, or required by the Guarantor in connection
with, the execution, delivery, validity, enforceability or admissibility in
evidence of this Guarantee or the performance by the Guarantor of its
obligations under this Guarantee has been obtained or made and is in full force
and effect and there has been no default in the observance of the conditions
or
restrictions (if any) imposed in, or in connection with, any of the
same.
Initial
representations and warranties
The
Guarantor further represents and warrants that:
No
material adverse change
there
has
been no material adverse change in the financial position of the Guarantor
or
the consolidated financial position of the Guarantor and its Subsidiaries from
that described to the Guarantor in the negotiations of this Guarantee or set
forth in the financial statements referred to in clause 0;
Pari
passu
the
obligations of the Guarantor under this Guarantee are direct, general and
unconditional obligations of the Guarantor and rank at least pari passu with
all
other present and future unsecured and unsubordinated Indebtedness of the
Guarantor with the exception of any obligations which are mandatorily preferred
by law and not by contract;
No
default under other Indebtedness
neither
the Guarantor nor any of its Subsidiaries are (nor would with the giving of
notice or lapse of time or the satisfaction of any other condition or any
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;
Information
the
information, exhibits and reports furnished by the Guarantor to the Security
Trustee and the other Creditors in connection with the negotiation and
preparation of this Guarantee or the other Security Documents to which such
Guarantor, is, or is to be, a party 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;
No
withholding Taxes
no
Taxes
are imposed by withholding or otherwise on any payment to be made by the
Guarantor under this Guarantee or under the Security Documents to which, the
Guarantor is, or is to be, a party or are imposed on or by virtue of the
execution or delivery by the Guarantor of this Guarantee or under the Security
Documents to which, the Guarantor is, or is to be, a party or any document
or
instrument to be executed or delivered under this Guarantee or any document
or
instrument to be executed or delivered thereunder; and
8
No
Default
no
Default has occurred.
Repetition
of representations and warranties
On
and as
of each day from the date of this Guarantee until all moneys due or owing by
the
Borrowers under the Facility Agreement, the Master Swap Agreement and/or the
other Security Documents and/or by the Guarantor under this Guarantee have
been
paid in full the Guarantor shall be deemed to repeat the representations and
warranties in clause 0 (and so that for this purpose the representation and
warranty in clause 0 shall refer to the then latest audited financial statements
delivered to the Creditors under clause 0) as if made with reference to the
facts and circumstances existing on each such day.
Undertakings
General
The
Guarantor undertakes that, from the date of this Guarantee and so long as any
moneys are owing under this Guarantee, it will:
Notice
of default
promptly
inform the Security Trustee of any occurrence of which it becomes aware which
might adversely affect the ability of the Guarantor to perform its obligations
under this Guarantee and without limiting the generality of the foregoing,
will
promptly inform the Security Trustee of any Default or of any material
litigation, arbitration or similar proceedings affecting the Borrowers and/or
the Ships forthwith upon becoming aware thereof and will from time to time,
if
so requested by the Security Trustee, confirm to the Security Trustee in writing
that, save as otherwise stated in such confirmation, no Default has occurred
and
is continuing and no material litigation, arbitration or similar proceedings
has
been commenced by or against the Borrowers and/or the Ships;
Consents
and licences
without
prejudice to clause 0, 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 its obligations under this
Guarantee;
Pari
passu
ensure
that its obligations under this Guarantee shall, without prejudice to the
provisions of clause 0, 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;
Financial
statements
prepare
financial statements of the Guarantor and consolidated financial statements
of
the Guarantor and its Subsidiaries in accordance with generally accepted
international principles and practices consistently applied in respect of each
financial year and cause the same to be reported on by its auditors and prepare
unaudited financial statements of the Guarantor and unaudited consolidated
financial statements of the Guarantor and its Subsidiaries in respect of each
quarter on the same basis as the annual statements (Form 10-Q reports in respect
of the Guarantor for each quarter (in a form satisfactory to the Security
Trustee) shall be acceptable in this respect) and deliver to the Security
Trustee as many copies of the same as the Security Trustee may reasonably
require as soon as practicable but not later than one hundred and eighty (180)
days (in the case of audited financial statements) or ninety (90) days (in
the
case of unaudited financial statements) after the end of the financial period
to
which they relate;
9
Delivery
of reports
deliver
to the Security Trustee and each Bank as many copies as they may reasonably
require of every report, circular, notice or like document issued by the
Guarantor to its shareholders or creditors generally; and
Provision
of other information
provide
the Security Trustee, the Swap Bank and each Bank with:
|
|
(a)
|
such
financial and other information concerning the Guarantor and its
affairs
as the Security Trustee, the Swap Bank or any Bank may from
time to time reasonably require;
and
|
|
|
(b)
|
such
documents and evidence as the Security Trustee, the Swap Bank and
any Bank
shall from time to time require, based on applicable law and regulations
from time to time and the Security Trustee, the Swap Bank and such
Bank’s
own internal guidelines from time to time to identify the Guarantor
and
any other persons involved or affected by the transaction(s) contemplated
by this Guarantee.
|
Negative
undertakings
The
Guarantor undertakes that from the date of this Guarantee and so long as any
moneys are owing under this Guarantee it will not, without the prior written
consent of the Security Trustee (such consent not to be unreasonably withheld
or
delayed):
Disposals
and
will
procure that none of its Subsidiaries will, sell, transfer, 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 0 material in the opinion of the Agent in relation
to
the undertakings, assets, rights and revenues of such Guarantor and its
Subsidiaries taken as a whole) of its present or future undertakings, assets,
rights or revenues (otherwise than by transfers, sales or disposals for full
consideration in the ordinary course of trading) whether by one or a series
of
transactions related or not;
Constitutional
documents
agree
to
any change to its Articles of incorporation/By-laws/statues or other
constitutional documents; and
Ownership
|
|
(c)
|
permit
any change in the legal and beneficial ownership of the shares in
the
Borrowers; or
|
|
|
(d)
|
permit
any change in the majority shareholders of the Guarantor from that
disclosed to the Agent on or before the date of this Guarantee save
that
no such consent shall be required if the Guarantor shall become a
Subsidiary of Bear Xxxxxxx Merchant Manager III, L.P. and the Agent’s
consent to a future transfer of shares in the Guarantor that would
result
in the Guarantor ceasing to be a Subsidiary of Bear Xxxxxxx Merchant
Manager III, L.P. shall not be unreasonably withheld or
delayed.
|
Financial
Undertakings
The
Guarantor further undertakes with the Security Trustee that, from the date
of
this Guarantee and so long as any moneys are owing under this
Guarantee:
10
the
ratio
of the Guarantor’s and its Subsidiaries’ consolidated EBITDA to Interest expense
shall never fall below 2:1;
the
value
of the Guarantor’s Net Worth shall never fall below $30,000,000;
and
the
Guarantor shall have a minimum Cash of $5,000,000,
For
the
purposes of this clause 5.3 the terms: (a) “Net Worth” means
the aggregate of the Guarantor’s Total Assets less the Guarantor’s Total
Liabilities as each such term is respectively determined in accordance with
the
audited and unaudited consolidated financial statements of the Guarantor and
its
Subsidiaries delivered to the Security Trustee under clause 0; (b)
“EBITDA” means the earnings of the
Guarantor before interest, taxes, depreciation and amortization as determined
in
accordance with the audited and unaudited consolidated financial statements
of
the Guarantor and its Subsidiaries delivered to the Security Trustee under
clause 5.1.4; (c) “Interest expense” shall be determined in
accordance with the audited and unaudited consolidated financial statements
of
the Guarantor and its Subsidiaries delivered to the Security Trustee under
clause 5.1.4; and (d) “Cash” means “cash” as determined in
accordance with the audited and unaudited consolidated financial statements
of
the Guarantor and its Subsidiaries delivered to the Security Trustee under
clause 5.1.4.
For
the
avoidance of doubt where reference is made in this clause 5.3 to calculations
being made in accordance with the audited and unaudited consolidated financial
statements of the Guarantor and its Subsidiaries delivered to the Security
Trustee under clause 5.1.4, the first such calculations shall be made on the
basis of the audited consolidated financial statements of the Guarantor and
its
Subsidiaries in respect of the financial year ended 31 December 2006, and in
the
event that the Guarantor shall ever change the basis of calculation or the
accounting basis of its audited or unaudited consolidated financial statements
(whether in form or substance) the calculations set out in this clause 5.3
shall
be made by the Security Trustee in the manner which in the reasonable opinion
of
the Security Trustee resembles most closely that evidenced by the audited
consolidated financial statements delivered to the Security Trustee in respect
of the financial year ended on 31 December 2006.
Compliance
certificate
The
Guarantor undertakes that, from the date of this Guarantee and so long as moneys
are owing under this Guarantee, it will deliver to the Security Trustee,
together with the audited and unaudited financial statements prepared pursuant
to clause 5.1.4 in respect of each financial quarter or financial year (as
the
case may be) to which such certificate relates, for distribution to the Banks,
sufficient copies for all the Banks of a written certificate from the finance
director (or equivalent) of the Guarantor certifying:
|
|
(e)
|
the
amount of (i) EBITDA and Interest expense determined for the proposal
clause 5.3.1, (ii) the value of the Net Worth for the purposes of
clause
5.3.2 and (iii) the amount of the Cash determined for the purposes
of
clause 5.3.3, in each case, on the basis (inter alia) of the assets
and
liabilities shown in the latest audited or, as the case may be, unaudited
financial statements of the Guarantor to be produced pursuant to
clause
5.1.4 at such date; and
|
|
|
(f)
|
that
the Guarantor is in compliance with its obligations in clause 5.3
(or, if
it was not in compliance, indicating the extent of the
breach).
|
Each
such
certificate to be provided hereunder shall be accompanied by adequate
information supporting the values so placed on the various assets.
Set-off
The
Guarantor authorises each Bank and the Swap Bank to apply any credit balance
to
which the Guarantor is then entitled on any account of the Guarantor with such
Bank and the Swap Bank at any of its branches in or towards satisfaction of
any
sum then due and payable from the Guarantor to such Bank or the Swap Bank under
this Guarantee. For this purpose each Bank and the Swap 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. Neither the Bank nor the Swap Bank shall be obliged to
exercise any right given to it by this clause 6. Each Bank and
the Swap Bank shall notify the Security Trustee and the Guarantor forthwith
upon
the exercise or purported exercise of any right of set-off giving full details
in relation thereto and the Security Trustee shall inform the other
Creditors.
11
Benefit
of this Guarantee
Benefit
and burden
This
Guarantee shall be binding upon the Guarantor and its successors in title and
shall enure for the benefit of the Security Trustee, for the benefit of itself
and each of the other Creditors and their respective successors in title and
(in
the case of the Banks) their Assignees and Substitutes. The Guarantor
expressly acknowledges and accepts the provisions of clause 15 of the Facility
Agreement and agree that any person in favour of whom an assignment or a
transfer is made in accordance with such clause shall be entitled to the benefit
of this Guarantee.
Changes
in constitution or reorganisation of Creditors
For
the
avoidance of doubt and without prejudice to the provisions of clause 0, this
Guarantee shall remain binding on the Guarantor notwithstanding any change
in
the constitution of the Creditors or any of them or their or its absorption
in,
or amalgamation with, or the acquisition of all or part of their or its
undertaking or assets by, any other person, or any reconstruction or
reorganisation of any kind, to the intent that this Guarantee shall remain
valid
and effective in all respects in favour of any assignee, transferee or other
successor in title of the Creditors in the same manner as if such assignee,
transferee or other successor in title had been named in this Guarantee as
a
party instead of, or in addition to, the relevant Creditor, as the case may
be.
No
assignment by Guarantor
The
Guarantor may not assign or transfer any of its rights or obligations under
this
Guarantee.
Disclosure
of information
Any
Creditor may disclose to a prospective assignee or transferee or to any other
person who may propose entering into contractual relations with such Creditor
in
relation to the Facility Agreement such information about the Guarantor as
such
Creditor shall consider appropriate provided such prospective assignee,
substitute or transferee enters into a confidentiality agreement with the
Security Trustee and the Creditors in relation to such information.
Notices
and other matters
Notice
Every
notice, request, demand or other communication under this Guarantee
shall:
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;
be
deemed
to have been received, subject as otherwise provided in this Guarantee, in
the
case of a letter, when delivered personally or three days after it has been
put
into the post, 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
be
sent:
|
|
(g)
|
to
the Guarantor at:
|
|
|
Xxxxx
Xxxxxx Center
|
|
|
0
xxx xx Xxxxxx
|
|
|
XX
00000
|
|
|
Xxxxxx
|
|
|
Fax:
|
x000
0000 0000
|
|
|
Attention:
Finance Department
|
12
|
|
(h)
|
to
the Security Trustee at:
|
|
|
KfW
|
|
|
Xxxxxxxxxxxxxxxxxxx
0-0, X00000
|
|
|
Xxxxxxxxx
xx Xxxx
|
|
|
Xxxxxxx
Xxxxxxxx of Germany
|
|
|
Fax:
|
x00
00 0000 0000
|
|
|
Attention:
|
Credit
Operations
|
|
|
Shipping
X4b1
|
or
to
such other address or facsimile number as is notified by the Guarantor or the
Security Trustee to the other parties to this Guarantee.
No
implied waivers, remedies cumulative
No
failure or delay on the part of the Creditors or any of them to exercise any
power, right or remedy under this Guarantee shall operate as a waiver thereof,
nor shall any single or partial exercise by the Security Trustee or the other
Creditors or any of them 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 this Guarantee are cumulative and
are not exclusive of any remedies provided by law.
English
translations
All
certificates, instruments and other documents to be delivered under or supplied
in connection with this Guarantee shall be in the English language or shall
be
accompanied by a certified English translation upon which the Creditors shall
be
entitled to rely.
Other
guarantors
The
Guarantor agrees to be bound by this Guarantee notwithstanding that any other
person intended to execute or to be bound by any other Guarantee or assurance
under or pursuant to the Facility Agreement may not do so or may not be
effectually bound and notwithstanding that such other Guarantee or assurance
may
be determined or be or become invalid or unenforceable against any other person,
whether or not the deficiency is known to the Creditors or any of
them.
Expenses
The
Guarantor agrees to reimburse the Creditors or any of them on demand for all
legal and other costs, charges and expenses on a full and unqualified indemnity
basis which may be incurred by the Creditors or any of them in relation to
the
enforcement of this Guarantee against the Guarantor.
Partial
Invalidity
If,
at
any time, any provision of this Guarantee is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision in any other respect
or
under the law of any other jurisdiction will be affected or impaired in any
way.
Counterparts
This
Guarantee may be entered into in any number of counterparts and by the parties
to it on separate counterparts, each of which when executed and delivered shall
be an original, but all the counterparts together shall constitute one and
the
same instrument.
13
Law
and jurisdiction
Law
This
Guarantee is governed by and shall be construed in accordance with English
law.
Submission
to jurisdiction
The
Guarantor agrees for the benefit of the Creditors that any legal action or
proceedings arising out of or in connection with this Guarantee against the
Guarantors or any of them or any of its assets may be brought in the English
courts, irrevocably and unconditionally submit to the jurisdiction of such
courts and irrevocably designates, appoints and empowers X. Xxxxxxxx & Co.
Ltd of St Magnus House, 3 Xxxxx Xxxxxx Xxxxxx, Xxxxxx XX0X 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 Creditors to take proceedings against the Guarantor 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
Guarantor further agrees that only the courts of England and not those of any
other State shall have jurisdiction to determine any claim which the Guarantor
may have against the Creditors arising out of or in connection with this
Guarantee.
IN
WITNESS whereof the parties to this Guarantee have caused this
Guarantee to be duly executed as a deed on the date first above
written.
|
SIGNED,
SEALED and DELIVERED
|
)
|
|||
|
as
a DEED
|
)
|
|||
|
by
|
)
|
|||
|
for
and on behalf of
|
)
|
|||
|
)
|
||||
|
pursuant
to a power of attorney
|
)
|
|||
|
dated
2007
|
)
|
Attorney-in-Fact
|
||
|
in
the presence of:
|
)
|
|||
|
Witness
|
||||
|
Name:
|
||||
|
Address:
|
||||
|
Occupation:
|
||||
|
SIGNED,
SEALED and DELIVERED
|
)
|
|||
|
as
a DEED by
|
)
|
|||
|
for
and on behalf of
|
)
|
Authorised
Signatory
|
||
|
KfW
|
)
|
|||
|
as
authorised signatories
|
)
|
|||
|
in
the presence of:
|
)
|
Authorised
Signatory
|
||
|
Witness
|
||||
|
Name:
|
||||
|
Address:
|
||||
|
Occupation:
|
14
