EXHIBIT 4.1
Private & Confidential
Dated April 3, 2006
Facility Agreement
for a
US$360,000,000 Revolving Credit Facility
to
ARIES MARITIME TRANSPORT LIMITED
provided by the
banks and financial institutions
listed in Schedule 1
Arrangers
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
NORDEA BANK FINLAND PLC, LONDON BRANCH
Co-Arrangers
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
HSH NORDBANK AG
SUMITOMO MITSUI BANKING CORPORATION, BRUSSELS BRANCH
Swap Banks
HBOS TREASURY SERVICES PLC
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
NORDEA BANK FINLAND PLC, LONDON BRANCH
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
HSH NORDBANK AG
SMBC CAPITAL MARKETS, INC.
Agent
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
Private & Confidential
Dated April 3, 2006
Facility Agreement
for a
US$360,000,000 Revolving Credit Facility
to
ARIES MARITIME TRANSPORT LIMITED
provided by the
banks and financial institutions
listed in Schedule 1
Arrangers
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
NORDEA BANK FINLAND PLC, LONDON BRANCH
Co-Arrangers
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
HSH NORDBANK AG
SUMITOMO MITSUI BANKING CORPORATION, BRUSSELS BRANCH
Swap Banks
HBOS TREASURY SERVICES PLC
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
NORDEA BANK FINLAND PLC, LONDON BRANCH
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
HSH NORDBANK AG
SMBC CAPITAL MARKETS, INC.
Agent
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
NORTON ROSE
Contents
Clause Page
1 Purpose and definitions..................................................1
2 The Facility.............................................................15
3 Interest and Interest Periods............................................18
4 Repayment, prepayment, reduction and termination.........................20
5 Commitment commission, fees and expenses.................................23
6 Payments and taxes; accounts and calculations............................24
7 Representations and warranties...........................................26
8 Undertakings.............................................................30
9 Conditions...............................................................42
10 Events of Default........................................................43
11 Indemnities..............................................................47
12 Unlawfulness and increased costs.........................................48
13 Security, set-off and pro-rata payments..................................50
14 Accounts.................................................................52
15 Assignment, substitution and lending office..............................55
16 Agent....................................................................57
17 Notices and other matters................................................57
18 Governing law and jurisdiction...........................................59
Schedule 1 Part 1 - The Banks and their Commitments..........................60
Part 2 - The Swap Banks......................................................62
Part 3 - The Co-Arrangers....................................................63
Schedule 2 Part 1 - Initial Ships............................................64
Part 2 - Additional Ship Selection Criteria..............................67
Part 3 - Maximum amount of Advance.......................................67
Part 4 - Details of Initial Owners.......................................68
Schedule 3 Form of Drawdown Notice...........................................70
Schedule 4...................................................................71
Part 1 - Documents and evidence required as
conditions precedent to the Commitment..........................71
Part 2 - Documents and evidence required as
conditions precedent to the first Advance.......................73
Part 3 - Documents and evidence required as
a condition precedent to all Advances being made (clause 9.3)...76
Part 4 - Additional documents and evidence required
as a condition precedent to any Contract
Instalment Advance (referred to in clause 9.1)..................80
Schedule 5 Form of Substitution Certificate..................................81
Schedule 6 Compliance Certificate............................................85
Schedule 7 Calculation of Additional Cost....................................87
THIS AGREEMENT is dated April 3, 2006 and made BETWEEN:
(1) ARIES MARITIME TRANSPORT LIMITED as borrower (the "Borrower");
(2) the banks and financial institutions whose names and addresses are set
out in Schedule 1, Part 1 (the "Banks");
(3) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND and NORDEA BANK FINLAND
PLC, LONDON BRANCH in their capacity as joint lead arrangers (the
"Arrangers");
(4) the banks and financial institutions whose names and addresses are set
out in Schedule 1, Part 3 (the "Co-Arrangers");
(5) the banks and financial institution whose names and addresses are set
out in Schedule 1, Part 2 (the "Swap Banks"); and
(6) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND in its capacity as
Agent, security agent and trustee (the "Agent").
IT IS AGREED as follows:
1 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 Borrower a revolving credit facility of up to three
hundred and sixty million dollars ($360,000,000) which is to be applied
by the Borrower:
(a) in refinancing the intra-group loans made to the Initial Owners
by the Borrower using the Existing Facilities (being in the
maximum amount of two hundred and thirty four million, three
hundred and nine thousand nine hundred and ninety nine Dollars
($234,309,999)) which Existing Facilities are to be prepaid from
the proceeds of such refinancing;
(b) in making available an intra-group loan to Compassion Overseas
Limited pursuant to an Intra-Group Loan Agreement to finance 90%
of the purchase price of Stena Compassion, being the sum of
fifty million four hundred and ninety thousand Dollars
($50,490,000);
(c) in making available to the Additional Owners intra-group loans
under the Intra-Group Loan Agreements to allow the Additional
Owners to finance:
(i) up to 100% of the purchase price or the construction
costs of the Additional Ships; and
(ii) the Expected Project Costs; and
(d) for general corporate purposes up to a maximum amount of five
million Dollars ($5,000,000).
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Acceptable Employment" means, in relation to each Ship, a charter or
other employment arrangement for a minimum period of twelve (12) months
with a reputable charterer and at a rate of hire, which has been
approved by the Majority Banks in their sole discretion;
"Account Bank" means The Governor and Company of the Bank of Scotland of
New Uberior House, 11 Earl Grey Street, Edinburgh EH3 9BN, Scotland and
includes its successors in title;
"Accounts" means the Retention Account and the Earnings Accounts
together, and "Account" means any or all of them;
"Accounts Charges" means the charges of the Earnings Accounts and the
Retention Account executed or (as the context may require) to be
executed by the Borrower and each Owner (as appropriate) in favour of
the Agent as security agent and trustee on behalf of the Finance Parties
in respect of each Earnings Account and the Retention Account in the
agreed form and "Account Charge" means any of them;
"Additional Cost" means in relation to any period a percentage
calculated for such period at an annual rate determined by the
application of the formula in Schedule 7;
"Additional Owner" means any company incorporated in a jurisdiction,
capitalised, structured and managed in a manner acceptable to the
Arrangers in their sole discretion which becomes the owner of an
Additional Ship;
"Additional Ship Selection Criteria" means, in relation to an Additional
Ship, the selection criteria for such Additional Ship set out in Part 2
of Schedule 2 or such other criteria for an Additional Ship which is
approved by the Majority Banks at the request of the Borrower from time
to time;
"Additional Ships" means the additional ships which meet the Additional
Ship Selection Criteria purchased or (as the context may require) to be
purchased by an Additional Owner with the prior written approval of the
Majority Banks and "Additional Ship" means any of them;
"Advance" means each borrowing of a proportion of the Commitment by the
Borrower forming part of the Loan or, as the context may require, the
principal amount of such borrowing for the time being outstanding and
"Advances" means all of them;
"Agency Agreement" means the agency agreement executed or (as the
context may require) to be executed between the Agent, the Arrangers,
the Co-Arrangers, the Swap Banks and the Banks in the agreed form;
"Agent" means The Governor and Company of the Bank of Scotland of New
Uberior House, 11 Earl Grey Street, Edinburgh EH3 9BN, Scotland or such
other person as may be appointed agent, security agent and trustee for
the Banks pursuant to the Agency Agreement and includes its successors
and assigns;
"Approved Brokers" means Clarksons, Braemar Seascope Group PLC, R.S.
Platou Shipbrokers A.S., Arrow Sale & Purchase (UK) Ltd, Galbraith's
Limited, Simpson Spence & Young Ltd and Fearnleys A/S or any other
broker approved by the Banks in their sole discretion;
"Arrangers" means The Governor and Company of the Bank of Scotland of
New Uberior House, 11 Earl Grey Street, Edinburgh EH3 9BN, Scotland and
Nordea Bank Finland plc, London Branch of 8th Floor, City Place House,
55 Basinghall Street, London EC2V 5NB, England as joint lead arrangers
and "Arranger" means any of them;
"Assignee" has the meaning ascribed thereto in clause 15.3;
"Assignment of Intra-Group Loan Agreements" means the assignment
executed or (as the context may require) to be executed by the Borrower
in favour of the Agent as security agent and trustee on behalf of the
Finance Parties in the agreed form;
"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 general business in
London, Hamburg and New York City (or any other relevant place of
payment under clause 6);
"Banks" mean the banks and financial institutions listed in Schedule 1
and includes their respective successors in title, Assignees and
transferees and "Bank" means any or all of them;
"Borrowed Money" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks, (ii) any bond, note, loan stock,
debenture or similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted (otherwise than
on a non-recourse basis), (v) deferred payments for assets or services
acquired, (vi) finance leases and hire purchase contracts, (vii) swaps,
forward exchange contracts, futures and other derivatives, (viii) any
other transaction (including without limitation forward sale or purchase
agreements) having the commercial effect of a borrowing or raising of
money or of any of (ii) to (vii) above and (ix) guarantees in respect of
Indebtedness of any person falling within any of (i) to (viii) above;
"Borrower" means Aries Maritime Transport Limited of Canon's Court, 22
Victoria Street, Hamilton HM EX, Bermuda and includes its successors in
title;
"Borrower's Group" means the Borrower and its Related Companies;
"Borrower's Security Documents" means, at any relevant time, such of the
Security Documents as shall have been executed by the Borrower at such
time;
"Builder" means, in relation to an Additional Ship which is a
newbuilding, the builder of that Additional Ship and includes its
successors in title;
"Cash" has the meaning given to that term in clause 8.6;
"Charter" means:
(a) in relation to an Initial Ship, any time charter or consecutive
voyage charter for an Initial Ship as notified to the Agent by
the Borrower and approved by the Majority Banks in writing;
(b) in relation to an Additional Ship, any time charter or
consecutive voyage charter for that Additional Ship for a term
which exceeds or which by virtue of any optional extensions may
exceed twelve (12) months' duration,
and "Charters" means all of them;
"Charter Assignments" means the specific assignments of all of the
Charters executed (or as the context may require) to be executed by the
Owners in favour of the Agent as security agent and trustee on behalf of
the Finance Parties in the agreed form and "Charter Assignment" means
any of them;
"Classification" means:
(a) in relation to an Initial Ship, the classification set out in
Part 1 of Schedule 2; and
(b) in relation to any Additional Ship, the highest class available
to vessels of its type with the relevant Classification Society,
or, in each case, such other classification as the Agent shall, at the
request of the Borrower, have agreed in writing shall be treated as the
Classification in relation to such Ship for the purposes of the Security
Documents;
"Classification Society" means:
(a) in relation to an Initial Ship, the classification society set
out in Part 1 of Schedule 2; and
(b) in relation to any Additional Ship, a classification society
which is a member of the International Association of
Classification Societies,
or, in each case, such other classification society which the Agent
shall, at the request of the Borrower, have agreed in writing shall be
treated as the Classification Society in relation to such Ship for the
purposes of the Security Documents;
"Co-Arrangers" means the banks and financial institutions whose names
and addresses are set out in Schedule 1, Part 3 and "Co-Arranger" means
any or all of them;
"Commitment" means to the extent not terminated or reduced pursuant to
clause 4.6 of this Agreement, the sum of three hundred and sixty million
Dollars ($360,000,000) and in relation to:
(a) each Bank the amount set opposite the name of that Bank under
the heading "Commitment" in Part 1 of Schedule 1 and the amount
of any other Commitment transferred to it under this Agreement;
and
(b) to any other bank, the amount of any Commitment transferred to
it under this Agreement, under the relevant Substitution
Certificate,
as reduced by any relevant term of this Agreement;
"Compliance Certificate" means the compliance certificate issued by the
Borrower under clause 8.7.7;
"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 Stena Compassion and any second-hand Additional
Ship, the memorandum of agreement or other contract for the sale
and purchase of a ship (to be in a form and substance
satisfactory to the Agent) made or (as the context may require)
to be made, between the Seller of such Ship and the relevant
Owner as buyer of such Ship; and
(b) in relation to any Additional Ship which is a newbuilding, a
shipbuilding contract made between the relevant Builder of such
Additional Ship and the relevant Additional Owner of that
Additional Ship and/or the relevant Seller of that Additional
Ship (to be in a form and substance satisfactory to the Agent)
and as the same may subsequently be supplemented and/or amended,
and "Contracts" means all of them;
"Contract Assignment Consent and Acknowledgements" means the
acknowledgements of notice of, and consent to, the assignment in respect
of a Contract relative to an Additional Ship which is a newbuilding to
be given by the relevant Builder, in the form scheduled to the relevant
Pre-delivery Security Assignment;
"Contract Instalment Advance" means, in relation to any Additional Ship
which is a newbuilding, an Advance made, or to be made, to finance the
payment of an instalment of the relevant Contract Price falling due
before the Delivery Date for that Additional Ship;
"Contract Price" means;
(a) in relation to Stena Compassion, the price payable by the
relevant Owner to the relevant Seller under the Contract for
Stena Compassion; and
(b) in relation to any Additional Ship, the price payable by the
relevant Owner to the relevant Builder or Seller (as
appropriate) in accordance with the relevant Contract;
"Contribution" means in relation to a Bank, the principal amount of the
Loan owing to such Bank at any relevant time;
"Credit Support Document" has the meaning given to that expression in
Section 14 of the Master Swap Agreements and as set out in the relevant
paragraph of Part 4 to the Schedule to each Master Swap Agreement;
"Credit Support Provider" means any person defined as such pursuant to
Section 14 of the Master Swap Agreements;
"Deeds of Covenant" means, where appropriate, the deeds of covenant
collateral to the Mortgages executed or (as the context may require) to
be executed by the Owners in favour of the Agent as security agent and
trustee on behalf of the Finance Parties in the agreed form and "Deed of
Covenant" means any of them;
"Default" means any Event of Default or any event or circumstance which
with the giving of notice or lapse of time or the satisfaction of any
other condition (or any combination thereof) would constitute an Event
of Default;
"Delivery" means the delivery of a Ship to, and the acceptance of the
relevant Ship by, the relevant Owner pursuant to the relevant Contract;
"Delivery Date" means, in relation to each Additional Ship and Stena
Compassion, the date on which such Ship is delivered to the relevant
Owner in accordance with the relevant Contract;
"Delivery Date Advance" means, in relation to an Additional Ship which
is a newbuilding, an Advance made, or to be made, to finance the
instalment of the Contract Price falling due on the Delivery Date for
that Additional Ship;
"DOC" means a document of compliance issued to an Operator in accordance
with rule 13 of the ISM Code;
"Dollars" and "$" means the lawful currency of the United States of
America and in respect of all payments to be made under any of the
Security Documents mean funds which are for same day settlement in the
New York Clearing House Interbank Payments System (or such other U.S.
dollar funds as may at the relevant time be customary for the settlement
of international banking transactions denominated in U.S. dollars);
"Drawdown Date" means any date, being a Banking Day falling during the
Drawdown Period, on which an Advance is, or is to be, made;
"Drawdown Notice" means a notice substantially in the terms of Schedule
3;
"Drawdown Period" means (subject to the provisions of clause 2.5.4) the
period from and including the date of this Agreement and ending on the
Repayment Date or the period ending on such earlier date (if any) on
which the Commitment is reduced to zero pursuant to clauses 10.2 or 12;
"Earnings" means, in relation to each Ship, all moneys whatsoever from
time to time due or payable to the relevant Owner of such Ship 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 Owner 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;
"Earnings Accounts" means interest bearing Dollar accounts of the
Borrower and the Owners opened or (as the context may require) to be
opened by the Borrower and the Owners with the Account Bank and includes
any other account designated in writing by the Account Bank to be an
Earnings Account for the purposes of this Agreement and "Earnings
Account" means any of them;
"EBITDA" has the meaning given to that term in clause 8.6;
"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;
"Equity Ratio" has the meaning given to that term in clause 8.6;
"Event of Default" means any of the events or circumstances described in
clause 10.1;
"Existing Facilities" means the Advances (as therein defined) made
available pursuant to the facilities agreement dated 3 June 2005 (as
supplemented and amended from time to time) (the "Existing Facilities
Agreement") and made between (1) the Borrower, (2) the banks and
financial institutions as set out in Schedule 1 to the Existing
Facilities Agreement, (3) Fortis Bank (Nederland) N.V., The Governor and
Company of the Bank of Scotland and Nordea Bank Finland plc, London
Branch as lead arrangers and (4) Fortis Bank (Nederland) N.V. as agent;
"Expected Project Costs" means:
(a) in connection with the construction of an Additional Ship, all
reasonable pre-delivery costs up to the Delivery Date of such
Additional Ship which have been approved by the Agent;
(b) in connection with the acquisition of an Additional Ship from a
Seller, the deposit payable in respect of such Additional Ship
pursuant to the relevant Contract in an amount approved by the
Agent; and
(c) all interest paid by the Borrower on the relevant Advance under
clause 3 of this Agreement up to the Delivery Date of such
Additional Ship;
"Facility" means the revolving credit facility made available under this
Agreement as described in clause 2;
"Fair Market Value" means, in relation to each Ship, the fair market
value of such Ship determined in accordance with clause 8.2.2;
"Fee Letter" means the letter of even date herewith executed between the
Borrower, the Agent and the Arrangers;
"Financial Covenants" means the Borrower's financial covenants set out
in clause 8.6;
"Finance Parties" means the Agent, the Arrangers, the Co-Arranger(s),
the Swap Banks and the Banks and "Finance Party" means any of them;
"Financial Quarter Day" has the meaning given to that term in clause
8.6;
"Flag State" means:
(a) in relation to an Initial Ship, the flag state set out in Part 1
of Schedule 2; and
(b) in relation to an Additional Ship, a state or territory
designated in writing by the Agent, at the request of the
Borrower, as being the "Flag State" of a Ship for the purposes
of the Security Documents;
"Fleet Book Value" has the meaning given to that term in clause 8.6;
"Fleet Market Value" has the meaning given to that term in clause 8.6;
"Fleet Vessel" means a Ship and any other vessel owned, operated,
managed or crewed by any member of the Borrower's Group;
"GAAP" means generally accepted accounting principles in the United
States of America;
"General Assignments" means, where appropriate, all of the general
assignments collateral to the Mortgages executed or (as the context may
require) to be executed by the Owners in favour of the Agent as security
agent and trustee on behalf of the Finance Parties in substantially the
agreed form and "General Assignment" means any of them;
"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;
"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;
"Initial Owner" means, in relation to each Initial Ship, the owner of
that Initial Ship set out in Part 1 of Schedule 2 and "Initial Owners"
means all of them;
"Initial Ships" means the initial ships whose names and particulars are
set out in Part 1 of Schedule 2 and "Initial Ship" means any of them;
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means, in relation to any Advance or the Loan (as the
case may be), 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;
"Intra-Group Loan Agreements" means the loan agreements in a form and
substance acceptable to the Arrangers executed or (as the context may
require) to be executed by the Borrower and each Owner relating to the
intra-group loan to be made available by the Borrower to each Owner to
enable each such Owner to finance the acquisition and/or refinancing of
the relevant Ship and "Intra-Group Loan Agreement" means any of them;
"ISM Code" means the International Safety 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 Organisation and incorporated into the Safety of Life at Sea
Convention and includes any amendments or extensions thereto and any
regulation issued pursuant thereto;
"ISSC" means an International Ship Security Certificate issued in
respect of a Ship under the provisions of the ISPS Code;
"LIBOR" means, in relation to a particular period, the arithmetic mean
(rounded upward if necessary to five decimal places) of the London
interbank offered rates for Dollar deposits for a period equal to such
period at or about 11 a.m. (London time) on the second Banking Day
before the first day of such period as displayed on the "LIBO" page on
the Reuter Monitor Money Rates Service (or such other page as may
replace such "LIBO" page on such service for the purpose of displaying
London interbank offered rates of major banks for Dollar deposits) (the
"LIBO" page), provided that if on such date the offered rates of less
than two banks are so displayed, LIBOR for such period shall be the
arithmetic mean (rounded as aforesaid) of the rates respectively quoted
to the Agent by each of the Reference Banks at the request of the Agent
as such Reference Bank's offered rate for Dollar deposits in an amount
approximately equal to the amount in relation to which LIBOR is to be
determined for a period equivalent to such period to prime banks in the
London Interbank Market at or about 11 a.m. (London time) on the second
Banking Day before the first day of such period;
"Loan" means the principal amount owing to the Banks under this
Agreement at any relevant time;
"Majority Banks" means that Bank or Banks holding at least sixty six and
two thirds per cent (66 (2)/3%) of the Commitment and/or sixty six and
two thirds per cent (66 (2)/3%) of the Loan;
"Management Agreements" means the agreements executed or (as the context
may require) to be executed between the relevant Owner and the Manager
in a form previously approved in writing by the Arrangers or any other
agreement previously approved in writing by the Arrangers between the
relevant Owner and the Manager providing (inter alia) for the Manager to
manage the Ships and "Management Agreement" means any of them;
"Manager" means Magnus Carriers Corporation, a company incorporated in
the Republic of Panama, with its registered office at Salduba Building,
East 53rd Street, Urbanizacion Obarrio, Panama City, Republic of Panama
and established in Greece under the law 89 regime with a principal place
of business at 18 Zerva Nap. Str., 16675 Glyfada, Greece, in its
capacity as the technical manager of the Ships or any other person
appointed by the Borrower or other person, with the prior written
consent of the Agent, as the manager of the Ships and includes its
successors in title and assignees;
"Manager's Account" means an interest bearing Dollar account of the
Manager to be opened by the Manager with the Account Bank and includes
any other account designated in writing by the Account Bank to be the
Manager's Account for the purposes of this Agreement;
"Manager's Undertaking" means an undertaking executed or (as the context
may require) to be executed by the Manager in favour of the Agent as a
condition precedent to the approval of the appointment of the Manager as
manager of a Ship, such undertaking to be in substantially the agreed
form or in such other form as the Arrangers may in their sole discretion
agree and "Manager's Undertakings" means all of them;
"Margin" means the margin listed in the following table which shall be
adjusted, to the extent that this may be necessary, on the basis of the
most recent Compliance Certificate with effect from the next following
date upon which interest is payable pursuant to clause 3.1. In the event
of the Borrower failing to provide a Compliance Certificate pursuant to
clause 8.7.7 the margin shall be 1.5%.
========================================================================
Corporate Leverage Margin
< 50% 1.125%
= 50% but < 60% 1.250%
= 60% but < 65% 1.375%
= 65% 1.500%
========================================================================
Where:
"Corporate Leverage" means, at any time in respect of the Borrower's
Group, the ratio of outstanding Total Liabilities divided by the Total
Assets, the latter adjusted by the Agent for the difference between
Fleet Market Value and Fleet Book Value;
"Master Swap Agreements" means the agreements dated 30 August 2005 in
respect of HBOS Treasury Services plc and Nordea Bank Finland plc,
London Branch and 2006 in respect of The Governor and Company of the
Bank of Ireland, HSH Nordbank AG and SMBC Capital Markets, Inc. each as
amended and modified and each made between the Borrower and the relevant
Swap Bank and any Continuations (as defined therein) supplemented
thereto and "Master Swap Agreement" means either of them;
"Master Swap Assignment" means the security assignments of the Master
Swap Agreements executed or (as the context may require) to be executed
by the Borrower in favour of the Agent;
"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, in relation to each Ship, a first priority statutory
mortgage or first preferred mortgage of such Ship executed or (as the
context may require) to be executed by the relevant Owner in favour of
the Agent as security agent and trustee on behalf of the Finance Parties
in the agreed form and "Mortgages" means all of them;
"Mortgaged Ship" means, at any relevant time, any Ship which is at such
time subject to a Mortgage and/or the Earnings, Insurances and
Requisition Compensation (as defined in the Ship Security Documents for
such Ship) of which are subject to an Encumbrance pursuant to the
relevant Ship Security Documents and a Ship shall for the purposes of
this Agreement be deemed to be a Mortgaged Ship as from the date that
the Mortgage of that Ship shall have been executed and registered in
accordance with this Agreement until whichever shall be the earlier of
(a) the payment in full of the amount required to be paid to the Banks
or to the Agent on their behalf pursuant to clause 4.5 following the
sale or Total Loss of such Ship, (b) the date on which all moneys owing
under the Security Documents have been repaid in full and (c) the date
upon which the Agent deletes or procures the deletion of the relevant
Mortgage in accordance with the terms of this Agreement;
"NASDAQ" means the stock exchange run by the US National Association of
Securities Dealers with the main exchange located in the United States
of America, originally an acronym for the National Association of
Securities Dealers Automatic Quotations;
"Operator" means any person who is from time to time during the Security
Period concerned in the operation of the Ship and falls within the
definition of "Company" set out in rule 1.1.2 of the ISM Code;
"Owners" means the Initial Owners and the Additional Owners and "Owner"
means any of them;
"Owner's Guarantee" means, in relation to each Owner, the guarantee
issued or (as the context may require) to be issued by that Owner in
favour of the Agent in the agreed form as (inter alia) security for all
moneys and the discharge of all obligations and liabilities due, owing
or incurred by the Borrower under or pursuant to this Agreement, the
Master Swap Agreements and the other Borrower's Security Documents and
"Owner's Guarantees" means all of them;
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with the legislation of the European Community relating to
economic and monetary union;
"Permitted Encumbrance" means any Encumbrance in favour of the Agent
and/or the Banks 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 for a sum
not (except with the prior written consent of the Agent) exceeding the
Casualty Amount (as defined in the relevant Deed of Covenant or relevant
Mortgage);
"Pollutant" means and includes oil and its products, any other
polluting, toxic or hazardous substance and any other substance whose
release into the environment is regulated or penalised by Environmental
Laws;
"Pre-delivery Security Assignment" means, in relation to any Additional
Ship which is a newbuilding, an assignment of the relevant Contract and
the relevant Refund Guarantee with respect to that Additional Ship
executed or (as the context may require) to be executed by the relevant
Owner of that Additional Ship in favour of the Agent as security agent
and trustee on behalf of the Finance Parties in the agreed form and
"Pre-delivery Security Assignments" means all of them;
"Protocol of Delivery and Acceptance" means, in relation to Stena
Compassion and any Additional Ship, the protocol of delivery and
acceptance to be signed by or on behalf of the relevant Seller and the
relevant Owner as buyer of such Ship evidencing the delivery and
acceptance of such Ship pursuant to the relevant Contract, such protocol
to be in a form satisfactory to the Agent;
"Reduction Dates" means the date falling six (6) months after the date
of this Agreement and each of the dates falling at six (6) monthly
intervals thereafter up to the date falling six (6) months before the
Repayment Date and "Reduction Date" means each such date;
"Reference Banks" means the Arrangers;
"Refund Guarantee" means, in relation to any Additional Ship which is a
newbuilding, the guarantee issued or to be issued by the relevant Refund
Guarantor in respect of the relevant Builder's obligations under the
relevant Contract and any further guarantee(s) to be issued by such
Refund Guarantor in respect of such obligations, pursuant to any
agreement supplemental to the relevant Contract, and any extensions,
renewals or replacements thereto or thereof and "Refund Guarantees"
means all of them;
"Refund Guarantee Assignment Consent and Acknowledgements" means the
acknowledgements of notice, and consent to, the assignment in respect of
any Refund Guarantee to be given by the relevant Refund Guarantor in the
form scheduled to the relevant Pre-delivery Security Assignment;
"Refund Guarantor" means, in relation to any Refund Guarantee, the
refund guarantor stipulated under the relevant Contract and includes its
successors in title (which shall be acceptable to the Agent in its sole
discretion);
"Registry" means the offices of the registrar, commissioner or
representative of the relevant Flag State who is duly authorised and
empowered to register the relevant Ship, the relevant Owner's title to
such Ship and the relevant Mortgage under the laws and flag of the Flag
State through the relevant Registry;
"Related Company" of a person means any Subsidiary of such person, any
company or other entity of which such person is a Subsidiary and any
Subsidiary of any such company or entity;
"Relevant Jurisdiction" means any jurisdiction in which or where any
Security Party is incorporated, resident, domiciled, has a permanent
establishment, carries on, or has a place of business or is otherwise
effectively connected;
"Repayment Date" means the date which falls sixty (60) months after the
date of this Agreement;
"Requisition Compensation" means all sums of money or other compensation
from time to time payable during the Security Period by reason of the
Compulsory Acquisition of a Ship;
"Restricted Companies" means the Borrower and its Related Companies and
the other Security Parties and their respective Related Companies;
"Retention Account" means an interest bearing Dollar account of the
Borrower opened or (as the context may require) to be opened by the
Borrower with the Account Bank and includes any other account designated
in writing by the Account Bank to be a Retention Account for the
purposes of this Agreement;
"Retention Amount" means, in relation to any Retention Date, such sum as
shall be the aggregate of:
(a) one-sixth (1/6th) of any sum that may need to be repaid on the
next following Reduction Date to ensure that the Loan does not
exceed the Commitment on such Reduction Date; and
(b) the applicable fraction (as hereinafter defined) of the
aggregate amount of interest falling due for payment in respect
of each part of the Loan during and at the end of each Interest
Period current at the relevant Retention Date and, for this
purpose, the expression "applicable fraction" in relation to
each Interest Period shall mean a fraction having a numerator of
one and a denominator equal to the number of Retention Dates
falling within the relevant Interest Period;
"Retention Dates" means the date falling one (1) month after the date of
this Agreement and each of the dates falling at monthly intervals
thereafter and "Retention Date" shall be construed accordingly;
"Retention Event" means any event, including without limitation the
making of any Advance, resulting in:
(a) an amount becoming payable on the next following Reduction Date;
and/or
(b) the amount repayable on the next following Reduction Date being
increased;
"Security Documents" means:
(a) the Accounts Charges;
(b) this Agreement;
(c) the Assignment of Intra-Group Loan Agreements;
(d) the Charter Assignments;
(e) any Contract Assignment Consents and Acknowledgements;
(f) the Deeds of Covenant;
(g) the General Assignments;
(h) the Manager's Undertakings;
(i) the Master Swap Agreements;
(j) the Master Swap Assignment;
(k) the Mortgages;
(l) the Owner's Guarantees;
(m) any Pre-delivery Security Assignments;
(n) any Refund Guarantee Assignment Consents and Acknowledgements;
(o) any Share Charges; and
(p) any Tripartite Deed(s),
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 Borrower 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 collectively the Borrower, the Builder, the
Refund Guarantor, the Owners and the Manager (to the extent that the
Manager is Magnus Carriers Corporation or any other Related Company of
the Borrower and/or any other person that in the opinion of the
Arrangers is associated with either Gabriel Petridis and/or Mans Bolin)
or any other person who may at any time be a party to any of the
Security Documents (other than the Finance Parties and the Account Bank)
and "Security Party" means any of them;
"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 money 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 Borrower and the Banks) which is at any
relevant time one hundred and forty per cent (140%) of the Loan;
"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 Borrower and the Banks) which, at any relevant time,
is the aggregate of (a) the Fleet Market Value as most recently
determined in accordance with clause 8.2.2, (b) the market value of any
additional security for the time being actually provided to the Banks
pursuant to clause 8.2 and (c) the amount standing to the credit of the
Retention Account which is to be applied in repayment of the Loan or any
part thereof (but not, for the avoidance of doubt, the payment of
interest on the Loan or any part thereof);
"Seller" means:
(a) in relation to Stena Compassion, the seller of Stena Compassion
under the relevant Contract; and
(b) in relation to any Additional Ship, the relevant seller or the
relevant Builder of such Additional Ship,
and "Sellers" means all of them;
"Share Charge" means, in relation to each Owner, the charge of all of
the issued shares in the capital of such Owner executed or (as the
context may require) to be executed by the Borrower (or such other
direct shareholder of the Owner (being a wholly owned Subsidiary of the
Borrower) as the Agent may require) in favour of the Agent as security
agent and trustee on behalf of the Finance Parties pursuant to clause
8.1.13 such charge to be in form and substance acceptable to the Agent
and "Share Charges" means all of them;
"Shareholders Equity" has the meaning given to that term in clause 8.6;
"Ship Security Documents" means, in relation to any Ship, the relevant
Mortgage, the relevant Deed of Covenant, the relevant General
Assignment, any Charter Assignment, any Tripartite Deed and the relevant
Manager's Undertaking and "Ship Security Document" means any of them;
"Ships" means the Initial Ships and the Additional Ships and "Ship"
means any of them;
"SMC" means a safety management certificate issued in respect of the
Ship in accordance with rule 13 of the Code;
"Spill" means any actual or threatened emission, spill, release or
discharge of a Pollutant into the environment;
"Stena Compassion" means m.v. "STENA COMPASSION" whose particulars are
set out in Part 1 of Schedule 2;
"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;
"Substitution Certificate" means a certificate substantially in the form
of Schedule 5 (or in such other form as the Agent shall approve or
require);
"Swap Banks" means the banks and financial institutions listed in
Schedule 1, Part 2 and includes their respective successors in title,
Assignees and transferees and "Swap Bank" means any or all of them;
"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;
"Total Debt" has the meaning given to that term in clause 8.6;
"Total Assets" has the meaning given to that term in clause 8.6;
"Total Liabilities" has the meaning given to that term in clause 8.6;
"Total Loss" means:
(a) actual, constructive, compromised or arranged total loss of a
Ship; or
(b) the Compulsory Acquisition of a Ship; or
(c) the hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of a 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 Owner 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
Agreements;
"Tripartite Deed" means in relation to any Ship which is the subject of
a bareboat or demise charter, a tripartite deed executed or (as the
context may require) to be executed between the relevant bareboat
charterer of such Ship, the relevant Owner of such Ship and the Agent in
form and substance satisfactory to the Agent in its sole discretion and
"Tripartite Deeds" means all of them; and
"Underlying Documents" means collectively the Contracts, the Refund
Guarantees, the Management Agreements, any Charter(s) and the
Intra-Group Loan Agreements.
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;
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;
1.4.8 references to acts or things to be done by the Agent and references to
the Agent entering into a Security Document are to be construed as acts
or thing to be done for or by the Agent, or security to be given in
favour of the Agent, in the Agent's capacity as agent, security agent
and trustee on behalf of the Banks; and
1.4.9 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 Borrower 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 Agent and/or the Banks.
1.6 Contracts (Rights of Third Parties) Act 1999
No term of this Agreement is enforceable under the Contracts (Rights of
Third Parties) Act 1999 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, the Arrangers, the
Co-Arrangers, the Swap Banks and the Agent) only be regarded as having
been validly given or issued by the Majority Banks if all the Banks, the
Arrangers, the Co-Arrangers, the Swap 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 Facility
2.1 The Facility
Subject to the terms of this Agreement, the Banks agree to make
available to the Borrower a Dollar revolving credit facility in an
aggregate amount equal to the Commitment.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
other Bank, the Agent, the Swap Banks or the Borrower of any of their
respective obligations or liabilities under this Agreement or the Master
Swap Agreements, nor shall the Agent 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 several
Notwithstanding any other term of this Agreement the interests of the
Arrangers, the Agent, the Swap Banks and the Banks are several and the
amount due to each Arranger, the Agent (for its own account), each Swap
Bank and to each Bank is a separate and independent debt. The Agent,
each Arranger and each Bank shall have the right to protect and enforce
their respective rights arising out of this Agreement and it shall not
be necessary for the Agent, any Arranger or any Bank (as the case may
be) to be joined as an additional party in any proceedings for this
purpose.
2.4 Drawdown
Subject to the terms and conditions of this Agreement, each Advance
shall be made following receipt by the Agent from the Borrower of a
Drawdown Notice not later than 10 a.m. on the third Banking Day before
the Drawdown Date relative to such Advance, which shall be a Banking Day
falling within the Drawdown Period, on which such Advance is intended to
be 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. No Advances shall be available after the Repayment Date
and, subject to the provision of this Agreement, more than one Advance
may be made on the same date.
2.5 Timing and limitation of Advances
2.5.1 The amount of each Advance shall, subject to the following provisions of
this clause 2.5, be for such amount as is specified in the Drawdown
Notice of that Advance.
2.5.2 Each Advance shall be made solely for one of the purposes set out in
clause 1.1.
2.5.3 No Advance of the Facility shall be available if:
(a) the making of that Advance would result in:
(i) more than twelve (12) Advances then being outstanding;
or
(ii) the aggregate of all of the Advances drawn down at any
relevant time exceeding the Commitment; and/or
(b) during the period up to the date falling thirty (30) months
after the date of this Agreement, the Loan is, or would
following the making of such Advance be, greater than an amount
equal to sixty five per cent (65%) of the Fleet Market Value; or
(c) during the period from the date falling thirty (30) months after
the date of this Agreement until the Repayment Date, the amount
of the Loan is, or would following the making of such Advance
be, greater than an amount equal to sixty per cent (60%) of the
Fleet Market Value.
For the purposes of sub-clause 2.5.3(b) and (c) the Fleet Market Value
shall be ascertained by reference to the valuation of the Ships in
accordance with clause 8.2.2 obtained not more than 30 days before the
date upon which the relevant Advance is to be made.
2.5.4 The Borrower shall not be entitled to draw down any Advance in the
period falling one month before any Reduction Date without the prior
consent of the Majority Banks if such Advance would result in a
Retention Event occurring.
2.5.5 No Advance of the Facility which is to be applied in refinancing an
Initial Ship shall exceed the amount set out alongside that Initial Ship
in Part 3 of Schedule 2 so that the aggregate of the Advances made
available to refinance the Initial Ships shall never exceed two hundred
and thirty four million three hundred and nine thousand nine hundred and
ninety nine Dollars ($234,309,999).
2.5.6 The Advance relative to Stena Compassion shall be paid directly to the
Seller of Stena Compassion, shall only be made available on the Delivery
Date for Stena Compassion and shall not exceed fifty million four
hundred and ninety thousand Dollars ($50,490,000).
2.5.7 The aggregate of all Advances relative to general corporate purposes (as
approved by the Arrangers from time to time) shall not exceed five
million Dollars ($5,000,000) and no Advance for general corporate
purposes shall be for less than five hundred thousand Dollars
($500,000).
2.5.8 No Advance relative to an Additional Ship shall be made available unless
the vessel which the relevant Additional Owner intends to acquire using
the relevant intra-group loan from the Borrower has been approved as an
Additional Ship, which approval shall only be granted by the Majority
Banks if the relevant vessel has met all the Additional Ship Selection
Criteria. In relation to the acquisition by an Additional Owner of a
vessel the Borrower shall be required to follow the procedure set out
below:
(a) if the Borrower wishes to drawdown any part of the Facility
relative to Additional Ships, the Borrower shall first send to
the Arrangers and the Agent a request (the "Request") which
shall include the information described below and a copy of the
inspection report for the relevant vessel;
(b) where the Request relates to a second-hand vessel, the Request
shall include the following information:
Name of vessel
Flag
Official Number
IMO Number
Purchase price
Year built
Type of vessel
Gross tonnage/net tonnage
Deadweight/cubic capacity/TEU of vessel
Classification Society
Class
Seller
Expected delivery date
Charter information (if any), including name and credit rating
(if any) of charterer, charter rate, % commission, period of
charter, options (if any)
Typical running costs for this type of vessel
Next drydock: expected date of drydock and estimated amount
Date of next special survey
Requested loan amount
Lightweight displacement of vessel;
(c) where the Request relates to a vessel which is a newbuilding,
the Request shall include the following information:
Builder
Hull No.
Type of vessel
Gross tonnage/net tonnage
Deadweight/cubic capacity/TEU of vessel
Date of Contract
Date keel laid
Original Contract Price
Purchase price
Payment terms under Contract
Seller
Scheduled delivery date
Date when Buyer has option to cancel the Contract for excessive
delay
Name of Refund Guarantor
Type of Refund Guarantee
Classification Society
Class
Flag on delivery.
2.5.9 With respect to any vessel to be financed under the Facility, the
Arrangers and the Agent will use their best efforts to respond to any
Request as soon as possible but in any event within ten (10) Banking
Days of the receipt of the Request.
2.5.10 No Advance relative to an Additional Ship shall:
(a) exceed whichever shall be the lesser of (i) the Contract Price
of the Additional Ship to be financed by way of such Advance and
(ii) the Fair Market Value of the Additional Ship to be financed
by way of such Advance and, in the case where the Additional
Ship is a newbuilding, the Expected Project Costs approved by
the Agent in its sole discretion; nor
(b) be applied in financing any Additional Ship which has not been
approved by the Arrangers and the Agent as an Additional Ship
(the "Approval") in accordance with clauses 2.5.8 and 2.5.9.
2.5.11 In relation to an Additional Ship which is a newbuilding, Contract
Instalment Advances and a Delivery Date Advance for that Additional Ship
shall be in sums of up to the amounts set out in the relevant Contract
and applied in or towards payment of the instalment of the Contract
Price for that Additional Ship and may be made on any Banking Day
falling within the Drawdown Period up to and in the case of the Delivery
Date Advance upon the Delivery Date for that Additional Ship subject to
the relevant instalment of the Contract Price for that Additional Ship
having become due and payable by the relevant Owner under such Contract.
2.5.12 Any Advance constituting a Contract Instalment Advance or a Delivery
Date Advance shall be applied in paying such relevant instalment of the
relevant Contract Price and shall be paid by the Banks to the relevant
Builder or, as the case may be, Seller and any Advance which is to be
applied in meeting Expected Project Costs approved by the Agent in its
sole discretion shall be paid by the Agent to the credit of the relevant
Earnings Account as appropriate.
2.6 Expected Project Costs
No Advance shall constitute Expected Project Costs only, other than in
the case of a deposit payable in respect of an Additional Ship pursuant
to a Contract. Any Drawdown Notices for Advances constituting (in part)
Expected Project Costs shall be accompanied with invoices or pro-forma
estimate invoices itemised in a written inventory each in a form and
substance acceptable to the Arrangers and the Agent in their sole
discretion certified by an officer of the Borrower and presented to the
Agent no later than fifteen (15) Banking Days before the relevant
Drawdown Date.
2.7 Availability
Upon receipt of a Drawdown Notice complying with the terms of this
Agreement the Agent shall notify each Bank thereof of the Drawdown Date
and, subject to the provisions of clause 9, on the date specified in the
Drawdown Notice each Bank shall make available to the Borrower its
portion of the Advance in accordance with clause 6.2. The Borrower
acknowledges that payment of any Advance to a Seller or any Contract
Instalment Advance or Delivery Date Advance to a Builder in accordance
with clause 6.2 shall satisfy the obligation of the Banks to lend that
Advance to the Borrower under this Agreement.
2.8 Application of proceeds
Without prejudice to the Borrower's obligations under clause 8.1.3, the
Banks shall have no responsibility for the application of proceeds of
the Loan (or any part thereof) by the Borrower.
3 Interest and Interest Periods
3.1 Normal interest rate
The Borrower shall pay interest on each Advance or the Loan in respect
of each Interest Period relating thereto on each Interest Payment Date
(or, in the case of Interest Periods of more than three (3) months, by
instalments, the first 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, (b) the Additional Cost and (c) LIBOR for
such Interest Period.
3.2 Selection of Interest Periods
The Borrower may by notice received by the Agent not later than 10 a.m.
on the second Banking Day before the beginning of each Interest Period
specify whether such Interest Period shall have a duration of one (1),
three (3) or six (6) months or such other period as the Borrower may
select and the Arrangers may, in their absolute discretion, agree. A
maximum of three (3) one (1) month Interest Periods will be permitted in
any one (1) calendar year.
3.3 Determination of Interest Periods
Every Interest Period shall be of the duration specified by the Borrower
pursuant to clause 3.2 but so that:
3.3.1 the first Interest Period in respect of each Advance shall commence on
the date on which such Advance is made;
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 and, on the last day of such Interest Period, all Advances
shall be consolidated into, and shall thereafter constitute the Loan;
3.3.3 if any Interest Period would otherwise overrun the Repayment Date, then
such Interest Period shall end on the Repayment Date; and
3.3.4 if the Borrower fails to specify the duration of an Interest Period in
accordance with the provisions of clause 3.2 and this clause 3.3 such
Interest Period shall have a duration of three (3) months or such other
period as shall comply with this clause 3.3.
3.4 Default interest
If the Borrower fails to pay any sum (including, without limitation, any
sum payable pursuant to this clause 3.4) on its due date for payment
under any of the Security Documents, the Borrower shall pay interest on
such sum on demand from the due date up to the date of actual payment
(as well after as before 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, (c) the Additional Cost and (d) 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, by reason of a
declaration by the Agent under clause 10.2.2 or a prepayment pursuant to
clauses 4.3, 4.5, 8.2 or 12.1 provided that if such unpaid sum is an
amount of principal which became due and payable 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 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 costs 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 (a) the Margin, (b) the Additional Cost and (c) the cost of
funds to such Bank.
3.5 Notification of Interest Periods and interest rate
The Agent shall notify the Borrower promptly of the duration of each
Interest Period and of each rate of interest determined by it under this
clause 3.
3.6 Market disruption; non-availability
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 Bank(s) in
the ordinary course of business in sufficient amounts to fund
their Contributions for such Interest Period or, where
applicable, that the quotation for LIBOR (together with (where
applicable) the normal spread being paid by any such Bank in
respect of Dollar borrowings) does not accurately reflect the
cost to such Bank(s) of obtaining such deposit;
the Agent shall forthwith give notice (a "Determination Notice") thereof
to the Borrower 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 any of the Commitments of all the Banks shall not be borrowed until
notice to the contrary is given to the Borrower by the Agent.
3.6.2 During the period of ten (10) 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 (without limitation) include
alternative interest periods, alternative currencies or alternative
rates of interest but shall include a margin above the cost of funds to
such Bank equivalent to the Margin. Each Substitute Basis so certified
shall be binding upon the Borrower and shall take effect in accordance
with its terms from the date specified in the Determination Notice until
such time as each Bank notifies the Borrower that none of the
circumstances specified in clause 3.6.1 continues to exist whereupon the
normal interest rate fixing provisions of this Agreement shall apply.
4 Repayment, prepayment, reduction and termination
4.1 Repayment
The Facility shall be repaid in full on the Repayment Date.
4.2 Voluntary prepayment
Subject to clause 4.8, the Borrower may prepay the Loan in whole or part
on any Interest Payment Date relating to the part of the Loan to be
repaid without premium or penalty.
4.3 Additional voluntary prepayment
Subject to clause 4.8, the Borrower may also prepay, without premium or
penalty, but without prejudice to its obligations under clauses 3.6,
4.8, 6.7 and 12.2:
4.3.1 the Contribution of any Bank to which the Borrower shall have become
obliged to pay additional amounts under clauses 3.6 or 12.2; or
4.3.2 any Bank's Contribution to which a Substitute Basis applies by virtue of
clause 3.6.2.
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero.
4.4 Mandatory Prepayments
4.4.1 The Borrower shall immediately prepay such part of the Loan as may at
any time be necessary to ensure that the Loan does not exceed the
Commitment.
4.4.2 If an Additional Ship which is a second hand vessel is not delivered to
the relevant Additional Owner under the relevant Contract for any reason
whatsoever, then the Borrower shall repay any Advance constituting (in
part) Expected Project Costs representing a deposit under the relevant
Contract not later than ten (10) days after the date of expiry or
termination of such Contract.
4.5 Prepayment on Total Loss and Sale
On a Ship becoming a Total Loss or suffering damage or being involved in
an incident which in the opinion of the Banks may result in such Ship
being subsequently determined to be a Total Loss or on any Ship being
sold with the prior written consent of the Arrangers, the obligation of
the Banks to make any further Advance under this Agreement (other than
any Advance(s) relating to Additional Ship(s) which have already been
approved by the Arrangers and the Agent and (a) in respect of which
Additional Ship(s) a Contract or Contracts has/have been executed, (b)
in relation to which Advance(s) all conditions precedent to drawdown
have been fully satisfied and (c) no Default has occurred or would arise
as a result of the making of such Advance(s)) shall immediately cease
and no further Advances shall be made available unless the Arrangers
shall otherwise agree until the Borrower has prepaid an amount equal to
the entire Total Loss proceeds or the entire sale proceeds (as the case
may be). Such prepayment must be made not later than the date falling
one hundred and twenty (120) 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 Borrower (or the Agent/any of the Banks pursuant to the
Security Documents) or immediately on the completion of the sale of such
Ship. For the purpose of this Agreement, a Total Loss shall be deemed to
have occurred:
4.5.1 in the case of an actual total loss of a Ship 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;
4.5.2 in the case of a constructive total loss of a Ship, upon the date and at
the time notice of abandonment of such 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 admit
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;
4.5.3 in the case of a compromised or arranged total loss, on the date upon
which a binding agreement as to such compromised or arranged total loss
has been entered into by the insurers of a Ship;
4.5.4 in the case of Compulsory Acquisition, on the date upon which the
relevant requisition of title or other compulsory acquisition occurs;
and
4.5.5 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 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.
4.6 Reduction and Termination of Commitment
4.6.1 Any part of the Commitment undrawn at the end of the Drawdown Period
shall thereupon be automatically cancelled.
4.6.2 The Commitment shall be permanently reduced on each Reduction Date by
the sum of Eleven million Dollars ($11,000,000) so that by the final
Reduction Date the Commitment shall have been reduced by ninety nine
million Dollars ($99,000,000) (for the purposes of this clause 4.6, the
"Reduction Amount").
4.6.3 The Borrower shall upon three (3) Banking Days notice to the Agent be
entitled to permanently reduce or terminate any undrawn portion of the
Facility (being a minimum of five million Dollars ($5,000,000) or any
larger sum which is an integral multiple of five million Dollars
($5,000,000)) without penalty. Each such reduction shall be made to the
Commitment in inverse order commencing with that part of the Commitment
which is not reduced by the Reduction Amount.
4.7 Amounts payable on prepayment
Any prepayment of all or part of the Loan under this Agreement
including, without limitation, pursuant to clauses 4.2, 4.5, 8.2.1 and
12.1 shall be made together with:
4.7.1 accrued interest on the amount to be prepaid to the date of such
prepayment;
4.7.2 any additional amount payable under clause 6.7 or 12.2; and
4.7.3 all other sums due and payable by the Borrower to the Banks under this
Agreement or any of the other Security Documents including, without
limitation, any amounts payable under clause 11.
4.8 Notice of prepayment; reduction of repayment instalments
No prepayment may be effected under clause 4.2 unless the Borrower shall
have given the Agent (who shall notify each Bank thereof of the intended
prepayment) at least fifteen (15) days' notice of its intention to make
such prepayment. Every notice of prepayment shall be effective only on
actual receipt by the Agent, shall be irrevocable, shall specify the
amount to be prepaid and shall oblige the Borrower to make such
prepayment on the date specified.
4.9 Reborrowing
Subject to the terms of this Agreement, the Borrower may at any time
prior to the Repayment Date, but subject to no Default having occurred
and the provisions of clause 2.5.4, re-borrow any part of the Facility
up to the amount of the Commitment that it may have repaid and/or
prepaid upon the same terms and conditions as set out in this Agreement.
4.10 Master Swap Agreements, Repayments and Prepayments
4.10.1 Notwithstanding any provision of the Master Swap Agreements to the
contrary, in the case of a prepayment of all or part of the Loan
(including, without limitation, upon a sale or Total Loss in accordance
with clause 4.5) then subject to clause 4.10.2 the Swap Banks shall be
entitled but not obliged (and, where relevant, may do without the
consent of the Borrower, where it would otherwise be required whether
under the Master Swap Agreements 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 any Transaction and/or the Master Swap Agreements and/or to
obtain or re-establish any hedge or related trading position in any
manner and with any person the Swap Banks in their absolute discretion
may determine.
4.10.2 If less than the full amount of the Loan remains outstanding, following
a prepayment under this Agreement and the Swap Banks in their absolute
discretion agree, following a written request of the Borrower, that the
Borrower 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
Borrower shall within ten (10) days of being notified by the Swap Banks
of such requirement, provide the Swap Banks with, or procure the
provision to the Swap Banks of, such additional security as shall in the
opinion of the Swap Banks 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 Banks in their absolute discretion may approve or
require, and each document comprising such additional security shall
constitute a Credit Support Document.
4.10.3 The Borrower shall on the first written demand of the Swap Banks
indemnify the Swap Banks in respect of all losses, costs and expenses
(including, but not limited to, legal costs and expenses) incurred or
sustained by the Swap Banks as a consequence of or in relation to the
effecting of any matter or transactions referred to in this clause 4.10.
4.10.4 Without prejudice to or limitation of the obligations of the Borrower
under clause 4.10.3, in the event that the Swap Banks exercise any of
their rights under clauses 4.10.1 and 4.10.2 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 Agreements in the same manner as if it were a Terminated
Transaction (as defined in Section 14 of the Master Swap Agreements)
pursuant to an Event of Default (as so defined in that Section 14) by
the Borrower and, accordingly, the Swap Banks shall be permitted to
recover from the Borrower a payment for early termination calculated in
accordance with the provisions of Section 6(e)(i) of the Master Swap
Agreements in respect of such Transaction.
5 Commitment commission, fees and expenses
5.1 Fees
The Borrower shall pay to the Agent for distribution to the Banks on
each Financial Quarter Day and on the Repayment Date or such earlier
date upon which the Commitment is reduced to zero or is terminated,
commitment commission computed from the date of this Agreement at the
rate of zero point five per cent (0.5%) per annum on the daily undrawn
amount of the Commitment.
The commitment commission referred to in this clause 5.1 shall be
payable by the Borrower to the Agent whether or not any part of the
Commitment is ever advanced.
The Borrower shall pay any fees due under the Fee Letter to the Agent
and/or Arrangers (as applicable) upon the terms and conditions set out
in the Fee Letter.
5.2 Expenses
The Borrower shall pay to the Finance Parties on a full indemnity basis
on demand all reasonable expenses (including legal, printing and
out-of-pocket expenses) incurred by the Finance Parties:
5.2.1 in connection with the negotiation, preparation, execution and, where
relevant, registration of the Security Documents and/or the Master Swap
Agreements and of any amendment or extension of or the granting of any
waiver or consent under, any of the Security Documents and/or the Master
Swap Agreements; 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
and/or the Master Swap Agreements, or otherwise in respect of the moneys
owing under any of the Security Documents and/or the Master Swap
Agreements,
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. Any value added tax chargeable in respect of any
services supplied by any of the Finance Parties under this Agreement
shall, on delivery of the value added tax invoice, be paid in addition
to any sum agreed to be paid hereunder.
5.4 Stamp and other duties
The Borrower shall pay all stamp, documentary, registration or other
like duties or taxes (including any duties or taxes payable by any
Finance Party) imposed on or in connection with any of the Underlying
Documents, the Security Documents and/or the Master Swap Agreements
and/or the Loan and shall indemnify the Finance Parties against any
liability arising by reason of any delay or omission by the Borrower to
pay such duties or taxes.
6 Payments and taxes; accounts and calculations
6.1 No set-off or counterclaim
The Borrower acknowledges that in performing their obligations under
this Agreement the Banks will be incurring liabilities to third parties
in relation to the funding of amounts to the Borrower, such liabilities
substantially matching the liabilities of the Borrower to the Banks and
that it is reasonable for the Banks to be entitled to receive payments
from the Borrower gross on the due date in order that the Banks are put
in a position to perform their matching obligations to the relevant
third parties. Accordingly, all payments to be made by the Borrower
under any of the Security Documents shall be made in full, without any
set-off or counterclaim whatsoever and, subject as provided in clause
6.7, free and clear of any deductions or withholdings, in Dollars on the
due date to the account of the Agent or 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 by any relevant Security Document, such
payments shall be for the account of all the Banks and the Agent shall
forthwith distribute such payments in like funds as are received by the
Agent to the Banks rateably in accordance with their Commitments or
Contributions, as the case may be.
6.2 Payment by the Banks
All sums to be advanced by the Banks to the Borrower under this
Agreement in respect of the Loan shall be remitted in Dollars on the
date of 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 of the Borrower and/or the Builder as 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
Borrower, the Borrower 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 360 day year.
6.6 Certificates conclusive
Any certificate or determination of the Agent or any Bank as to any rate
of interest or any other amount pursuant to and for the purposes of any
of the Security Documents shall, in the absence of manifest error, be
conclusive and binding on the Borrower and (in the case of a certificate
or determination by the Agent) on the Banks.
6.7 Grossing-up for Taxes
If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes from any payment due under any of the
Security Documents for the account of any Bank or the Agent (or if the
Agent is required to make any deduction or withholding from a payment to
a Bank), the sum due from the Borrower in respect of such payment shall
be increased to the extent necessary to ensure that, after the making of
such deduction or withholding, each Bank and the Agent receives on the
due date for such payment (and retains, free from any liability in
respect of such deduction or withholding), a net sum equal to the sum
which it would have received had no such deduction or withholding been
required to be made and the Borrower shall indemnify each Bank and the
Agent against any losses or costs incurred by any of them by reason of
any failure of the Borrower to make any such deduction or withholding or
by reason of any increased payment not being made on the due date for
such payment. The Borrower shall promptly deliver to the Agent and/or
the Banks any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or
withholding as aforesaid.
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 Borrower, the Agent or any Bank shall
receive or be granted a credit against or remission for any Taxes
payable by it, the Agent or any Bank shall, subject to the Borrower
having made any increased payment in accordance with clause 6.7 and to
the extent that the Agent or any Bank can do so without prejudicing its
retention of the amount of such credit or remission and without
prejudice to the right of the Agent or any Bank to obtain any other
relief or allowance which may be available to it, reimburse the Borrower
with such amount as the Agent or any Bank shall in its absolute
discretion certify to be the proportion of such credit or remission as
will leave the Agent or any Bank (after such reimbursement) in no worse
position than it would have been in had there been no such deduction or
withholding from the payment by the Borrower. Such reimbursement shall
be made forthwith upon the Agent or any Bank certifying that the amount
of the credit or remission has been received by it. Nothing contained in
this Agreement shall oblige the Agent or any Bank 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
Borrower shall not, by virtue of this clause 6.8, be entitled to enquire
about the Agent's or any Bank's 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 shall be the "account current" referred to in
certain of the Mortgages) showing the Loan and other sums owing by the
Borrower under the Security Documents and all payments in respect
thereof made by the Borrower 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 Borrower under the Security Documents.
7 Representations and warranties
7.1 Continuing representations and warranties
The Borrower represents and warrants to each of the Finance Parties
that:
7.1.1 Due incorporation
the Borrower and each of the other Security Parties are duly
incorporated and validly existing in good standing under the laws of
Bermuda, in the case of the Borrower, and, in the case of each of the
other Security Parties, under the laws of their respective countries of
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;
7.1.2 Corporate power
the Borrower has power to execute, deliver and perform its obligations
under the Underlying Documents, the Borrower's Security Documents and
the Master Swap Agreements and to borrow the Commitment and each of the
other Security Parties has power to execute and deliver and perform its
obligations under the Security Documents and the Underlying Documents to
which it is or is to be a party; all necessary corporate, shareholder
and other action has been taken to authorise the execution, delivery and
performance of the same and no limitation on the powers of the Borrower
to borrow will be exceeded as a result of borrowing the Loan;
7.1.3 Binding obligations
the Underlying Documents and the Security Documents and the Master Swap
Agreements 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 its obligations under,
and compliance with the provisions of, the Underlying Documents and the
Security Documents and the Master Swap Agreements 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 the
Borrower 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 the Borrower 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 memorandum and
articles of association/articles of
incorporation/by-laws/statutes or other constitutional documents
of the Borrower or any other Security Party; or
(d) result in the creation or imposition of or oblige the Borrower
or any of its 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 the
Borrower or its 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 the Borrower, threatened
against the Borrower or any of its Related Companies or any other
Security Party which could have a material adverse effect on the
business, assets or financial condition of the Borrower or any of its
Related Companies or any other Security Party;
7.1.6 No filings required
save for the registration of the Mortgages in the relevant Flag States
it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Underlying Documents or any of the
Security Documents or the Master Swap Agreements that they or any other
instrument be notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere in any Relevant Jurisdiction or that
any stamp, registration or similar tax or charge be paid in any Relevant
Jurisdiction on or in relation to the Underlying Documents or the
Security Documents or the Master Swap Agreements and each of the
Underlying Documents and the Security Documents or the Master Swap
Agreements 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 Master Swap
Agreements and the choice of the laws of the relevant Flag State to
govern each Mortgage 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 Borrower nor any other Security Party nor any of their
respective assets is entitled to immunity on the grounds of sovereignty
or otherwise from any legal action or proceeding (which shall include,
without limitation, suit, attachment prior to judgement, execution or
other enforcement);
7.1.9 Financial Statements
the Form F-1 Registration Statement registered with the United States
Securities and Exchange Commission and the pro forma historical
consolidated financial statements of the Borrower's Group for the 2003
and 2004 Financial Years and the pro forma opening balance sheet of the
Borrower's Group provided to the Banks in the negotiation of this
Agreement have been prepared in accordance with GAAP which have been
consistently applied and present fairly and accurately the financial
position of the Borrower and the Borrower's Group and at such date
neither the Borrower nor any member of the Borrower's Group had any
significant liabilities (contingent or otherwise) or any unrealised or
anticipated losses which are not disclosed by, or reserved against or
provided for in, such financial statements; and
7.1.10 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 and the Master Swap
Agreements or the performance by each Security Party of its obligations
under the Underlying Documents and the Security Documents and the Master
Swap Agreements 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;
7.1.11 No money laundering
in relation to the borrowing by the Borrower 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, the Borrower 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
7.1.12 Parent company
each Owner is a wholly-owned Subsidiary of the Borrower and Gabriel
Petridis and Mans Bolin each beneficially own not less than 10% of the
issued shares in the capital of the Borrower.
7.2 Initial representations and warranties
The Borrower further represents and warrants to each of the Finance
Parties that:
7.2.1 Pari passu
the obligations of the Borrower under this Agreement and the Master Swap
Agreements are direct, general and unconditional obligations of the
Borrower and rank at least pari passu with all other present and future
unsecured and unsubordinated Indebtedness of the Borrower;
7.2.2 No default under other Indebtedness
neither the Borrower 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 Indebtedness to which it is a party or by
which it may be bound;
7.2.3 Information
the information, exhibits and reports furnished by any Security Party to
the Banks in connection with the negotiation and preparation of the
Security Documents and the Master Swap Agreements are true and accurate
in all material respects and not misleading, do not omit material facts
and all reasonable enquiries have been made to verify the facts and
statements contained therein; there are no other facts the omission of
which would make any fact or statement therein misleading;
7.2.4 No withholding Taxes
no Taxes are imposed by withholding or otherwise on any payment to be
made by any Security Party under the Underlying Documents or the
Security Documents or the Master Swap Agreements 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 the Master Swap
Agreements or any other document or instrument to be executed or
delivered under any of the Security Documents or the Master Swap
Agreements;
7.2.5 No Default
no Default has occurred and is continuing;
7.2.6 No Default under any Contract or any Refund Guarantee
no relevant Owner is in default of any of its obligations under any
Contract or any of its obligations upon the performance or observance of
which depend the continued liability of any Refund Guarantor in
accordance with the terms of the relevant Refund Guarantee;
7.2.7 No Encumbrance in respect of pre-delivery security
no relevant Owner has previously charged, encumbered or assigned the
benefit of any of its rights, title and interest in or to any Contract
or any Refund Guarantee and such benefit and all such rights, title and
interest are freely assignable and chargeable in the manner contemplated
by the Security Documents;
7.2.8 Ship
each Mortgaged Ship will on the date of this Agreement or on the
relevant Delivery Date be:
(a) in the absolute ownership of the relevant Owner who will on the
date of this Agreement or on and after the relevant Delivery
Date be the sole, legal and beneficial owner of that Ship;
(b) provisionally registered in the name of the relevant Owner under
the laws and flag of the relevant Flag State through the
relevant Registry;
(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 relevant Classification
Society;
7.2.9 Ships' employment
a Mortgaged Ship will not on the date of this Agreement or on or before
the relevant Delivery Date be subject to any charter or contract or to
any agreement to enter into any charter or contract which, if entered
into after the date of the relevant Mortgage or relevant Deed of
Covenant would have required the consent of the Agent and on the date of
this Agreement and on each relevant Delivery Date there will not be any
agreement or arrangement whereby the Earnings for such Mortgaged Ship
may be shared with any other person;
7.2.10 Freedom from Encumbrances
no Mortgaged Ship, nor its Earnings, Insurances or Requisition
Compensation (each as defined in the relevant Mortgage or relevant Deed
of Covenant) nor its Earnings Account 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 date of this Agreement and on the
relevant Delivery Date for such Mortgaged Ship, subject to any
Encumbrance other than a Permitted Encumbrance;
7.2.11 Environmental matters
to the best of the knowledge and belief of the Borrower 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 Borrower's Group or any Fleet Vessel
and not fully satisfied; and
(c) there has been no Environmental Incident;
7.2.12 No material adverse change
there has been no material adverse change in the financial position of
the Borrower, any Owner or any member of the Borrower's Group from that
described by the Borrower to the Banks in the negotiation of this
Agreement;
7.2.13 Copies true and complete
the copies of each of the Underlying Documents delivered or to be
delivered to the Banks pursuant to clause 9.1 are, or will when
delivered be, true and complete copies of such documents and each of
such documents will when delivered constitutes valid and binding
obligations of the parties thereto enforceable in accordance with its
terms and there have been no amendments or variations thereof or
defaults thereunder.
7.3 Repetition of representations and warranties
On and as of the date of each Advance and (except in relation to the
representations and warranties in clause 7.2) on each Interest Payment
Date the Borrower shall (a) be deemed to repeat the representations and
warranties in clauses 7.1 (and so that representation and warranty in
clause 7.1.9 shall for this purpose refer to the then latest audited
financial statements delivered to the Banks under clause 8.1) 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 the Finance
Parties that the then latest audited financial statements delivered to
the Finance Parties have been prepared in accordance with GAAP which
have been consistently applied and present fairly and accurately the
financial position of each of the Borrower and the Owners as at the end
of the financial period to which the same relate and the results of the
operations of each of the Borrower and the Owners for the financial
period to which the same relate and, as at the end of such financial
period, neither the Borrower nor any Owner had any significant
liabilities (contingent or otherwise) or any unrealised or anticipated
losses which are not disclosed by, or reserved against or provided for
in, such financial statements.
8 Undertakings
8.1 General
The Borrower undertakes with each of the Finance Parties that, from the
date of this Agreement and so long as any moneys are owing under any of
the Security Documents and while all or any part of the Commitment
remains outstanding, it will:
8.1.1 Notice of Default
(a) promptly inform the Agent and each of the Finance Parties of any
occurrence of which it becomes aware which might adversely
affect the ability of any Security Party to perform its
obligations under any of the Security Documents or the
Underlying Documents and/or the Master Swap Agreements and,
without limiting the generality of the foregoing, will inform
the Agent and each of the Finance Parties of any Default
forthwith upon becoming aware thereof and will from time to
time, if so requested by the Agent or any Finance Party, confirm
to the Agent and each of the Finance Parties in writing that,
save as otherwise stated in such confirmation, no Default has
occurred and is continuing;
(b) promptly inform the Agent and each of the Finance Parties of any
occurrence of which it becomes aware which might adversely
affect the ability or rights of the Borrower to make any claims
under a Refund Guarantee or which might reduce or release any of
the obligations of a Refund Guarantor under such Refund
Guarantee;
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, the Master Swap Agreements and the Underlying
Documents;
8.1.3 Use of proceeds
use the Loan exclusively for the purpose specified in clause 1.1;
8.1.4 Pari passu
ensure that its obligations under this Agreement shall, without
prejudice to the provisions of clause 8.2 or to the security intended to
be created by the Security Documents and the Master Swap Agreements, at
all times rank at least pari passu with all its other present and future
unsecured and unsubordinated Indebtedness with the exception of any
obligations which are mandatorily preferred by law and not by contract;
8.1.5 Financial statements
prepare financial statements of the Borrower and the consolidated
financial statements of the Borrower's Group and procure that each Owner
prepares financial statements in accordance with GAAP consistently
applied in respect of each Financial Year and cause the same to be
reported on by its auditors (which shall be acceptable to the Agent in
its sole discretion) and prepare unaudited consolidated financial
statements for the Borrower's Group in respect of each Financial Quarter
on the same basis as the annual statements and deliver as many copies of
the same as the Finance Parties 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 sixty (60) days (in the case of
unaudited financial statements) after the end of the financial period to
which they relate;
8.1.6 Delivery of reports
deliver to the Finance Parties as many copies as they may reasonably
require of every material report, circular, notice or like document
issued by the Borrower to its shareholders or creditors generally;
8.1.7 Provision of financial and other information
deliver and provide the Finance Parties with:
(a) financial projections for each Financial Quarter;
(b) budgets for each Financial Year;
(c) appraisal reports and valuations for each Ship on a quarterly
basis pursuant to clause 8.2.2;
(d) copies of any filings by the Borrower with, and reports to, the
United States Securities and Exchange Commission;
(e) quarterly Compliance Certificates (including supporting
schedules); and
(f) such financial and other information concerning the Borrower,
the other Security Parties and their respective affairs as they
may from time to time reasonably require;
8.1.8 Obligations under Security Documents
duly and punctually perform each of the obligations expressed to be
assumed by it under the Security Documents, the Master Swap Agreements
and the Underlying Documents;
8.1.9 Compliance with ISM Code
and will procure that any Operator will, comply with and ensure that
each Mortgaged Ship and any Operator comply 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 its, or an Operator's
DOC or the SMC in respect of a Mortgaged Ship;
8.1.11 Issuance of DOC and SMC
and will procure that any Operator will, promptly inform the Agent upon
the issue to the Borrower or any Operator of a DOC and to a Ship of an
SMC or the receipt by any of the Borrower 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 Mortgaged Ship will comply with the
requirements of the ISPS Code including (but not limited to) the
maintenance and renewal of the ISSC for each Mortgaged 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 Mortgaged Ship;
8.1.13 Share Charges
procure, at any time during the Security Period, execution by the
Borrower (or such other direct shareholder of the Owner (being an wholly
owned Subsidiary of the Borrower) as the Agent may require) in favour of
the Agent of a Share Charge with respect to any Owner and the Borrower
agrees, if and when required to do so by the Agent (as instructed by the
Banks), promptly to execute or to procure the execution and delivery to
the Agent of all documents which the Agent may require to obtain the
full benefit of such charges over all of the issued shares in the
capital of the Owners;
8.1.14 Shareholding in Borrower
procure that at all times each Owner remains a wholly owned subsidiary
of the Borrower and that Gabriel Petridis and Mans Bolin each maintain
beneficial ownership of not less than 10% of the issued shares in the
capital of the Borrower;
8.1.15 Manager's bank accounts
procure that the Manager opens and maintains the Manager's Account and
all of its other bank accounts with the Account Bank;
8.1.16 Owner's Guarantee
procure that on or prior to the Drawdown Date of each Advance that the
relevant Owner executes and delivers to the Agent an Owner's Guarantee;
8.1.17 Charter Assignment
procure that the relevant Owner executes and delivers to the Agent a
Charter Assignment relating to any Mortgaged Ship which is the subject
of a Charter;
8.1.18 Listing on NASDAQ
maintain its listing as a public limited company on NASDAQ or such other
stock exchange acceptable to the Arrangers in their sole discretion and
comply with all of the listing rules, laws and regulations applicable to
public companies listed on NASDAQ or such other acceptable stock
exchange;
8.1.19 Intra-Group Loan Agreements
procure that all interest payment dates and all repayment dates relating
to the loans to be made pursuant to the Intra-Group Loan Agreements
match those of each relevant Advance drawn down by the Borrower under
this Agreement in order to make each of the said loans available to the
Owners and shall procure and ensure that all sums paid and/or payable by
the Owners to the credit of the Earnings Accounts shall be freely
available to the Agent to meet all payments of principal and interest
and all other sums payable by the Borrower to the Finance Parties
pursuant to this Agreement and each of the other Security Documents;
8.1.20 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 Borrower 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
8.1.21 Interest Rate Hedging Agreement
should it determine to do so, enter into acceptable interest rate
hedging agreements in relation to the Facility, including without
limitation Transactions under the Master Swap Agreements, with any Bank
and to the extent that such interest rate hedging agreements are not or
do not form part of the Master Swap Agreements, such interest rate
hedging shall be secured in such manner as the Arrangers may require.
8.2 Security value maintenance
8.2.1 Security shortfall
If at any time on or after the first Drawdown Date the Security Value
shall be less than the relevant Security Requirement, the Agent may give
notice to the Borrower requiring that such deficiency be remedied and
then the Borrower shall (unless a Ship has become a Total Loss) either:
(a) prepay within a period of fifteen (15) days of the date of
receipt by the Borrower of the Agent's said notice 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; or
(b) within thirty (30) days of the date of receipt by the Borrower
of the Agent's said notice 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.
Clause 4.7 shall apply to prepayments under clause 8.2.1(a).
8.2.2 Valuation of a Ship
A Ship shall, for the purposes of this clause 8.2, be valued in Dollars
two (2) weeks prior to the Delivery Date for such Ship and thereafter on
a quarterly basis or if earlier the date upon which the Initial Ships
are valued or would have been valued and thereafter all the Ships then
financed by this Agreement shall be valued quarterly or following a
Default at any time determined by the Agent. The value of a Ship shall
be calculated by taking the average of the charter free valuations for
such Ship from two (2) Approved Brokers (such valuations to be made
without, unless required by the Arrangers, 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
contract of employment concerning such Ship). Such valuation shall
constitute the value of a Ship for the purposes of this clause 8.2 until
the next following valuation.
The value of a 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
The Borrower undertakes to the Finance Parties to supply to the Agent
and to any such shipbrokers such information concerning a Ship and its
condition as such shipbrokers may reasonably require for the purpose of
making any such valuation.
8.2.4 Costs
All costs in connection with the Agent obtaining any valuation of a Ship
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 Borrower electing to constitute additional
security pursuant to clause 8.2.1(b) shall be borne by the Borrower.
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.
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 4 as may in the Banks'
opinion be appropriate and such favourable legal opinions as the Banks
shall in their absolute discretion require.
8.3 Negative undertakings
The Borrower undertakes with each of the Finance Parties that, from the
date of this Agreement and so long as any moneys are owing under the
Security Documents and/or the Master Swap Agreements and while all or
any part of the Commitment remains outstanding, it will not and will
procure that each Owner will not without the prior written consent of
the Majority Banks:
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 its present or
future undertakings, assets, rights or revenues (including, but not
limited to the Borrower's rights against the Swap Banks under any
Transactions and/or the Master Swap Agreements or all or part of the
Borrower's interest in any amounts payable to the Borrower by the Bank
under any Transaction and/or the Master Swap Agreements) to secure or
prefer any present or future Indebtedness or other liability or
obligation of the Borrower or any other person;
8.3.2 No merger
to the extent permitted by law, 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 either 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
Borrower's Group) of its present or future undertaking, assets, rights
or revenues (otherwise than by transfers, sales or disposals for full
consideration in the ordinary course of trading) whether by one or a
series of transactions related or not;
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;
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 Borrower or any Owner in
the ordinary course of its business of owning, operating and chartering
the Ship;
8.3.6 Other obligations
incur any obligations except for obligations arising under the
Underlying Documents or the Security Documents or the Master Swap
Agreements or contracts entered into in the ordinary course of its
business of owning, operating and chartering the Ships;
8.3.7 No borrowing
incur any Borrowed Money except for Borrowed Money pursuant to the
Security Documents;
8.3.8 Repayment of borrowings
repay the principal of, or pay interest on or any other sum in
connection with any of its Borrowed Money except for Borrowed Money
pursuant to the Security Documents;
8.3.9 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 the Ships is entered, guarantees required to procure the release
of a 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 (other than the loans under the Intra-Group Loan
Agreements) or grant any credit (save for normal trade credit in the
ordinary course of business) to any person or agree to do so and in the
case of the loans to be made under the Intra-Group Loan Agreements, the
Borrower will not without the prior written agreement of the Agent and
except as envisaged in clause 14.5 accept any repayments of principal or
interest or other sums due or payable thereunder or take any action
against any Owner;
8.3.11 Sureties
permit any Indebtedness of the Borrower to any person (other than the
Banks) 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 any Ship is
entered, guarantees required to procure the release a Ship from any
arrest, detention, attachment or levy or guarantees or undertakings
required for the salvage of such Ship);
8.3.12 Share capital and distribution
purchase or otherwise acquire for value any shares of its capital or
(where a Default has occurred or following the declaration of such
dividend, in the Agent's opinion, a Default shall occur) declare or pay
any dividends or distribute any of its present or future assets,
undertakings, rights or revenues to any of its shareholders;
8.3.13 Subsidiaries and parent
form or acquire any Subsidiaries other than in the case of the Borrower,
the Owners or cease to legally and beneficially own 100% of the issued
shares in the capital of the Owners, whether directly or indirectly; and
8.3.14 Financial Year
make any change to the Financial Year for the Borrower or any member of
the Borrower's Group.
8.4 Pre-delivery positive undertakings
In relation to each Additional Ship which is a newbuilding, the Borrower
undertakes and agrees with each of the Finance Parties that it will or
will procure that the relevant Owner will:
8.4.1 Document of title to an Additional Ship
give irrevocable instructions to the relevant Builder to hold such
Additional Ship and the builder's certificate and any other document of
title to such Additional Ship to the order and at the disposal of the
Agent and ensure that the relevant Builder complies with such
instructions;
8.4.2 Performance of the Contract
duly and punctually observe and perform all the conditions and
obligations imposed on it by the relevant Contract;
8.4.3 Performance by Builder
use its best endeavours to ensure that the Builder of such Additional
Ship observes and performs all conditions and obligations imposed on it
by the relevant Contract and take all steps within its power to ensure
that the Builder proceeds with the construction of such Additional Ship
with due diligence and despatch;
8.4.4 Progress of construction
upon the request of the Finance Parties, advise the Finance Parties of
the progress of construction of such Additional Ship and supply the
Finance Parties with such other information as they may require
regarding such Additional Ship, and the materials allocated to such
Additional Ship, the relevant Contract, or otherwise relating to the
construction of such Additional Ship;
8.4.5 Arbitration under the Contract
in the event that the Builder of such Additional Ship and/or the
relevant Owner resort to arbitration as provided in the relevant
Contract, immediately notify the Finance Parties in writing that such
arbitration has been initiated, advise the Finance Parties in writing of
the identity of the appointed arbitrators and upon termination of the
arbitration notify the Finance Parties in writing to that effect and
supply the Finance Parties with a copy of the arbitration award and a
certified English translation thereof;
8.4.6 Conveyance on default
where such Additional Ship is (or is to be) sold in exercise of any
power contained in the relevant Pre-delivery Security Assignment or
otherwise conferred on the Agent, to execute, forthwith upon request by
the Agent, such form of conveyance of such Additional Ship as the Agent
may require;
8.4.7 Enforcement of Owner's rights
do or permit to be done each and every act or thing which the Finance
Parties may from time to time require to be done for the purpose of
enforcing the relevant Owner's rights under or pursuant to the relevant
Contract and allow the name of the relevant Owner to be used as and when
required by the Agent for that purpose;
8.4.8 Notification of rejection of an Additional Ship
notify the Finance Parties immediately if the relevant Builder or (with
the prior written consent of the Agent given pursuant to clause 8.5) the
relevant Owner cancels, rescinds, repudiates or otherwise terminates the
relevant Contract or purports to do so or (with the prior written
consent of the Agent given pursuant to clause 8.5) the relevant Owner
rejects such Additional Ship or purports to do so or if such Additional
Ship shall become a Total Loss or partial loss or shall be damaged;
8.4.9 Ship's name and registration
register such Additional Ship provisionally or permanently under the
laws and flag of the relevant Flag State immediately upon Delivery,
procure that (if such Additional Ship is so registered provisionally on
the Delivery Date) such Additional Ship is permanently registered under
the laws and flag of the relevant Flag State within the time limit
imposed by the relevant Flag State (subject always to the relevant
Mortgage remaining in full force and effect) and keep such Additional
Ship registered at all times from the Delivery Date under the laws and
flag of the relevant Flag State; and
8.4.10 Mortgage
execute, and procure the registration of, the Mortgage relative to such
Additional Ship under the laws and flag of the relevant Flag State
immediately upon Delivery.
8.5 Pre-delivery negative undertakings
In relation to each Additional Ship which is a newbuilding, the Borrower
hereby further undertakes and agrees with each of the Finance Parties
that it will not, and will procure that the relevant Owner will not
without the prior written consent of the Majority Banks (and then only
subject to such conditions as the Agent may impose):
8.5.1 Sale or other disposal
sell or agree to sell, transfer, abandon or otherwise dispose of such
Additional Ship or any share or interest therein;
8.5.2 Creation of Encumbrances
create or agree to create or permit to subsist any Encumbrance over such
Additional Ship (or any share or interest therein) other than the
Encumbrances created or to be created pursuant to the Security
Documents;
8.5.3 Variation of Contract
agree to any variation of the relevant Contract or any substantial
variation of the specification of such Additional Ship (and for the
purpose of this paragraph any extras, additions or alterations which the
relevant Owner may desire to effect in the building of such Additional
Ship shall be deemed to constitute a substantial variation if the cost
thereof (which shall in every case be agreed in writing between the
relevant Owner and the relevant Builder before the work is put in hand
irrespective of whether the prior consent thereto of the Agent be
required hereunder) or if the aggregate cost of the proposed work
together with the cost of any work already ordered will alter the fixed
price of any of such Additional Ship by an amount greater than five per
cent (5%) of the said fixed price);
8.5.4 Releases and waivers of Contract
release the relevant Builder from any of its obligations under the
relevant Contract or waive any breach of the relevant Builder's
obligations thereunder or consent to any such act or omission of the
relevant Builder as would otherwise constitute such breach;
8.5.5 Delays
without prejudice to clause 8.5.3, agree to any variation of the
relevant Contract or the specification of such Additional Ship which
would delay the time for delivery of such Additional Ship;
8.5.6 Rejection and cancellation
either exercise or fail to exercise any right which the relevant Owner
may have to reject such Additional Ship or cancel or rescind or
otherwise terminate the relevant Contract provided always that any such
rejection of such Additional Ship or cancellation, rescission or other
termination of the relevant Contract by the relevant Owner after such
consent is given shall be without responsibility on the part of the
Finance Parties who shall be under no liability whatsoever to the extent
that such rejection, rescission, cancellation or termination is
thereafter adjudged to constitute a repudiation or other breach of such
Contract by the relevant Owner;
8.5.7 Assignment of Earnings
assign or agree to assign otherwise than to the Agent the Earnings of
such Additional Ship or any part thereof;
8.5.8 Variation of a Refund Guarantee
agree to any variation of the relevant Refund Guarantee;
8.5.9 Release and waiver of the Refund Guarantee
release the relevant Refund Guarantor from any of its obligations under
the relevant Refund Guarantee or waive any breach of the relevant Refund
Guarantor's obligations thereunder or consent to any such act or
omission of such Refund Guarantor as would otherwise constitute such
breach;
8.5.10 Chartering
let or agree to let such Additional Ship:
(a) on demise charter for any period; or
(b) by any time or consecutive voyage charter for a term which
exceeds or which by virtue of any optional extensions therein
contained may exceed twelve (12) months' duration; or
(c) on terms whereby more than two months' hire (or the equivalent)
is payable in advance; or
(d) below the market rate prevailing at the time when such
Additional Ship is fixed or other than on arms length terms;
8.5.11 Manager
to appoint a manager of such Additional Ship (other than the Manager) or
to terminate or amend the terms of any Management Agreement.
8.6 Financial Covenant definitions
For the purposes of clause 8.7 the following expressions shall have the
following meanings:
"Cash" means free and available negotiable money, orders, cheques and
bank balances and deposits but to exclude (a) any cash that is
specifically blocked and charged and (b) cash standing to the credit of
any blocked account and charged to the Agent pursuant to this Agreement;
"Cash Equivalent Investments" means at any time:
(a) certificates of deposit maturing within one year after the
relevant date of calculation and issued by a bank or financial
institution acceptable to the Agent;
(b) any investment in marketable debt obligations issued or
guaranteed by the government of the United States of America,
the United Kingdom, any member state of the European Economic
Area or any Participating Member State or by an instrumentality
or agency of any of them having an equivalent credit rating,
maturing within one year after the relevant date of calculation
and not convertible or exchangeable to any other security; or
(c) any other debt security approved by the Arrangers,
in each case, to which any member of the Borrower's Group is
beneficially entitled at that time and which is not issued or guaranteed
by any member of the Borrower's Group or subject to any Encumbrance
(other than one arising under the Security Documents).
"Current Assets" means, at any time in respect of the Borrower's Group,
the amount of current assets of the Borrower's Group on a consolidated
basis which would be included as current assets in a consolidated
balance sheet of the Borrower's Group in accordance with GAAP drawn up
at such time;
"Current Liabilities" means, at any time in respect of the Borrower's
Group, the amount of current liabilities of the Borrower's Group on a
consolidated basis which would be included as current liabilities in the
consolidated balance sheet of the Borrower's Group in accordance with
GAAP drawn up at such time excluding Deferred Revenue;
"Debt Service" means, in respect of any period, the aggregated:
(a) Interest Payable for such period;
(b) the total amount of all scheduled (but not voluntary or
mandatory) repayments of the Facilities made by the Borrower or
which fell due during such period; and
(c) the total amount of all scheduled (but not voluntary or
mandatory) repayments of principal under the terms of any other
Indebtedness (save for any revolving, overdraft or ancillary
facility that is available for simultaneous re-drawing according
to its terms) made by the members of the Borrower's Group or
which fell due during such period, including the principal
element of scheduled rental payments which under GAAP should be
treated as a finance lease or otherwise capitalised on the books
of such person, in accordance with such principles;
"Deferred Revenue" means at any time in respect of the Borrower's Group,
that liability calculated at the time an existing Charter(s) or other
employment arrangement is assumed, by discounting at the Borrower's
Group's weighted average cost of capital, the difference between the
market charter rate for an equivalent vessel and the assumed charter
rate (as set out in the then latest financial statements delivered to
the Finance Parties pursuant to clause 8.1.5), which liability is
recorded as deferred revenue and amortised to revenue over the remaining
period of such Charter(s) or other employment arrangement;
"EBITDA" means, in respect of any period, the consolidated profit on
ordinary activities of the Borrower's Group before Taxation for such
period:
(a) adjusted to exclude Interest Receivable and Interest Payable and
other similar income or costs to the extent not already
excluded;
(b) adjusted to exclude any gain or loss realised on the disposal of
fixed assets (whether tangible or intangible);
(c) after adding back depreciation and amortisation;
(d) adjusted to exclude any exceptional or extraordinary costs or
income;
(e) after deducting any profit arising out of the release of any
provisions against a liability or charge;
"Equity Ratio" means Shareholders Equity as a percentage of Total Assets
adjusted, in each case, for the difference between Fleet Market Value
and Fleet Book Value;
"Finance Lease" means any lease under which a member of the Borrower's
Group is the lessee which is or should be treated as a finance lease
under GAAP (and includes any hire purchase contract or other arrangement
which is similarly treated);
"Financial Quarter" means each period of approximately three (3) months
commencing on the day after a Financial Quarter Day and ending on the
next following Financial Quarter Day;
"Financial Quarter Day" means 31 March, 30 June, 30 September and 31
December in any year;
"Financial Year" means the annual accounting period of the Borrower's
Group ending on 31 December in each year;
"Fleet Book Value" means, at the end of a Relevant Period, the aggregate
book value of the Ships less depreciation as stated in the most recent
financial statements delivered pursuant to clause 8.1.5;
"Fleet Market Value" means, at the date of calculation, the aggregate of
the Fair Market Values of all of the Mortgaged Ships as last determined
in accordance with clause 8.2.2;
"Free Liquid Assets" means, at any given time, all Cash and Cash
Equivalent Investments held by the Borrower's Group less an amount equal
to the Debt Service due and payable during the immediately following two
Financial Quarters;
"Interest" means, in respect of any specified Borrowed Money, all
continuing regular or periodic costs, charges and expenses incurred in
effecting, servicing or maintaining such Borrowed Money including:
(a) gross interest, commitment fees, discount and acceptance fees
and guarantee, fronting and ancillary facility fees payable or
incurred on any form of such Borrowed Money;
(b) repayment and prepayment premiums payable or incurred in
repaying or prepaying such Borrowed Money; and
(c) the interest element of Finance Leases,
but excluding, in respect of such Borrowed Money, agency and arrangement
fees or other up-front fees;
"Interest Payable" means, in respect of any period, the aggregate
(calculated on a consolidated basis) of:
(a) the amounts charged and posted (or estimated to be charged and
posted) as a current accrual accrued during such period in
respect of members of the Borrower's Group by way of Interest on
all Borrowed Money, but excluding any amount accruing as
interest in-kind (and not as cash pay) to the extent capitalised
as principal during such period; and
(b) net payments in relation to interest rate or currency hedging
arrangements in respect of Borrowed Money (after deducting net
income in relation to such interest rate or currency hedging
arrangements);
"Interest Receivable" means, in respect of any period, the amount of
Interest accrued on cash balances of the Borrower's Group (including the
amount of interest accrued on the Earnings Accounts, to the extent that
the account holder is entitled to receive such interest) during such
period;
"Minimum Liquidity" means, at any time in respect of the Borrower's
Group, the minimum amount of Cash and Cash Equivalent Investments which
is equal to 5% of interest bearing debt;
"Relevant Period" means each rolling period of twelve (12) months ending
on a Financial Quarter.
"Shareholders Equity" means, at any time in respect of the Borrower's
Group, the amount of shareholders equity of the Borrower's Group on a
consolidated basis which would be included as shareholders equity in the
consolidated balance sheet of the Borrower's Group in accordance with
GAAP drawn up at such time;
"Total Assets" means, at any time in respect of the Borrower's Group,
the amount of total assets of the Borrower's Group on a consolidated
basis which would be included as total assets in a consolidated balance
sheet of the Borrower's Group in accordance with GAAP drawn up at such
time;
"Total Debt" means, at any time, the aggregate outstanding principal,
capital or nominal amount of all Borrowed Money of the Borrower's Group
calculated on a consolidated basis at that time;
"Total Liabilities" means, at any time in the respect of the Borrower's
Group, the amount of total liabilities of the Borrower's Group on a
consolidated basis which would be included as total liabilities in the
consolidated balance sheet of the Borrower's Group in accordance with
GAAP drawn up at such time; and
"Working Capital" means Current Assets less Current Liabilities
(including, at any given time, the current portion of long term debt
maturing within six (6) months).
8.7 Financial Covenants
The Borrower undertakes with each of the Finance Parties that, from the
date of this Agreement and so long as any moneys are owing under any of
the Security Documents and while all or any part of the Commitment
remains outstanding, it will:
8.7.1 Equity Ratio
maintain an Equity Ratio of not less than 35%;
8.7.2 Minimum Liquidity
maintain on a consolidated basis the Minimum Liquidity;
8.7.3 Working Capital
maintain on a consolidated basis on each Financial Quarter Day during
the Security Period Working Capital of not less than zero Dollars ($0);
8.7.4 Interest coverage
maintain a ratio of EBITDA to Interest Payable on a trailing four (4)
Financial Quarter basis of not less than 3.00 to 1.00;
8.7.5 Security Value Maintenance
ensure that at all times the Security Value is not less than the
Security Requirement;
8.7.6 Liquidity of Manager
ensure that the Manager shall at all times maintain a credit balance in
the Manager's Account of not less than $1,000,000; and
8.7.7 Compliance Certificate
deliver to the Agent at the end of each Financial Quarter, and at the
same time as the unaudited financial statements referred to in clause
8.1.5, a Compliance Certificate issued and signed by the Borrower's
Chief Financial Officer certifying that the covenants contained in this
clause 8.7 are being complied with and providing full calculations
supporting such compliance derived from the then latest financial
statements of the Borrower's Group as lodged with the Securities and
Exchange Commission of the United States by way of Form 6K/20F, such
certificate to be substantially in the form set out in Schedule 6.
8.8 Financial testing
The covenants in clause 8.7 shall be tested each Financial Quarter and
details of compliance (or non-compliance) shall be provided to the Agent
in accordance with clause 8.7.7.
9 Conditions
9.1 Documents and evidence
9.1.1 Commitment
The obligation of the Banks to make the Commitment available shall be
subject to the condition that the Agent, or its duly authorised
representative, shall have received the documents and evidence set out
in Part 1 of Schedule 4.
9.1.2 First Advance
The obligation of the Banks to make the first Advance available shall be
subject to the condition that the Agent or its duly authorised
representative shall have received not later than two (2) Banking Days
before the day on which the Drawdown Notice for the first Advance is
given, the documents and evidence specified in Part 2 of Schedule 4 in
form and substance satisfactory to the Banks.
9.1.3 All Advances
The obligation of the Banks to make each Advance shall be subject to the
further condition that the Agent, or its duly authorised representative,
shall have received on or prior to the relevant Drawdown Date of such
Advance, the documents and evidence specified in Part 3 of Schedule 4 in
form and substance satisfactory to the Banks.
9.1.4 Contract Instalment Advances
The obligation of the Banks to make any Advance which is a Contract
Instalment Advance shall be subject to the condition that the Agent, or
its duly authorised representative, shall have received, on or prior to
the day on which that Advance is intended to be made, the documents and
evidence specified in Part 4 of Schedule 4 in form and substance
satisfactory to the Banks.
9.1.5 Expected Project Costs
The obligation of the Banks to make any Advance for an Additional Ship
which is a newbuilding constituting in part Expected Project Costs shall
be subject to the further condition that the Agent, or its duly
authorised representative, shall have received invoices or pro-forma
invoices itemised in a written inventory which properly and accurately
represents the Expected Project Costs to the satisfaction of the Agent
in its sole discretion.
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 in respect of the relevant Advance, and at the time of the making
of the relevant Advance:
9.2.1 the representations and warranties contained in (i) clauses 7.1, 7.2 and
7.3, and (ii) clauses 4.1 and 4.3 of each Owner's Guarantee and
expressed to be made or repeated on the date of each Advance are true
and correct on and as of each such time as if each was made with respect
to the facts and circumstances existing at such time; and
9.2.2 no Default shall have occurred and be continuing or would result from
the making of such Advance.
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 (5) Banking Days prior to each Drawdown Date and not
later than five (5) Banking Days prior to each Interest Payment Date,
the Banks may request and the Borrower shall, not later than two (2)
Banking Days prior to such date, deliver to the Banks on such request
further favourable certificates and/or opinions as to any or all of the
matters which are the subject of clauses 7, 8, 9 and 10 and clauses 4
and 5 of each Owner's Guarantee.
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 or the Underlying Documents at the time,
in the currency and in the manner stipulated in the Security Documents
or the Underlying 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 Agreements: (a) an Event of Default or Potential Event of
Default (in each case as defined in the Master Swap Agreements) has
occurred and is continued under the Master Swap Agreements or (b) an
Early Termination Date (as defined in the Master Swap Agreements) has
occurred or been or become capable of being effectively designated under
the Master Swap Agreements or (c) a person entitled to do so gives
notice of an Early Termination Date under Section 6(b)(iv) of the Master
Swap Agreements or (d) any Master Swap Agreements is terminated,
cancelled, 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: the Borrower or any
Owner fails to obtain and/or maintain the Insurances (as defined in, and
in accordance with the requirements of, the Security Documents) for a
Ship or if any insurer in respect of such Insurances cancels the
Insurances or disclaims liability by reason, in either case, of
mis-statement in any proposal for the Insurances or for any other
failure or default on the part of the Borrower or any Owner or any other
person or the Borrower or any Owner 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 or 8.4; 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 (including,
without limitation, any Financial Covenant) expressed to be assumed by
it under any of the Security Documents or any of the Underlying
Documents (other than those referred to in clauses 10.1.1 and 10.1.3
above) 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 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 and/or the Master Swap Agreements or in
any notice, certificate or statement referred to in or delivered under
any of the Security Documents and/or the Master Swap Agreements 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 Security Party is not paid when
due (following the expiry of any grace periods) or any Indebtedness of
any Security Party becomes (whether by declaration or automatically in
accordance with the relevant agreement or instrument constituting the
same) due and payable (following the expiry of any grace periods) prior
to the date when it would otherwise have become due (unless as a result
of the exercise by the relevant Security Party of a voluntary right of
prepayment), or any creditor of any Security Party becomes entitled to
declare any such Indebtedness due and payable (each of the aforesaid
events, for the purposes of this clause 10.1.6 only an "Indebtedness
Event") or any facility or commitment available to any Security Party
relating to Indebtedness is withdrawn, suspended or cancelled by reason
of any default (however described) of the person concerned unless the
relevant Security Party shall have satisfied the Banks that such
Indebtedness Event, withdrawal, suspension or cancellation will not
affect or prejudice in any way the relevant Security Party's ability to
pay its debts as they fall due and fund its commitments, or any
guarantee given by any Security Party in respect of Indebtedness is not
honoured when due and called upon (following the expiry of any grace
periods); or
10.1.7 Legal process: any judgment or order made against any Security Party is
not stayed or complied with within seven (7) 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 seven (7) days; or
10.1.8 Insolvency: the Borrower or any Owner is unable or admits inability to
pay its debts as they fall due; suspends making payments on any of its
debts or announces an intention to do so; becomes insolvent; has assets
the value of which is less than the value of its liabilities (taking
into account contingent and prospective liabilities); or suffers the
declaration of a moratorium in respect of any of its Indebtedness; or
10.1.9 Reduction or loss of capital: a meeting is convened by 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 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 the Banks and/or the Agent believe that any such
petition or other step is imminent 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 any part of its assets
and/or undertaking or any other steps are taken to enforce any
Encumbrance over all or any part of the assets of any Security Party; or
10.1.13 Compositions: any corporate action, legal proceedings or other
procedures or steps are taken, or negotiations 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 the
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 10.1.12 (inclusive) or any Security Party otherwise becomes
subject, in any such country or territory, to the operation of any law
relating to insolvency, bankruptcy or liquidation; or
10.1.15 Cessation of business: 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 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, the Master Swap Agreements 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, the Master Swap Agreements or any of the Underlying
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, the Master Swap
Agreements or any of the Underlying Documents or for the Agent or the
Banks to exercise the rights or any of them vested in them under any of
the Security Documents or otherwise; or
10.1.19 Repudiation: any Security Party repudiates any of the Security
Documents, the Master Swap Agreements or any of the Underlying Documents
or does or causes or permits to be done any act or thing evidencing an
intention to repudiate any of the Security Documents, the Master Swap
Agreements or any of the Underlying 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 and/or the Master Swap Agreements
becomes enforceable; or
10.1.21 Material adverse change: there occurs, in the opinion of the Banks
and/or the Agent, a material adverse change in the financial condition
of any Security Party as described by the Borrower or any Security Party
to the Banks and/or 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 Borrower or Owner and the Borrower or Owner shall fail to procure
the release of such Ship within a period of seven (7) 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 relevant Delivery Date, such Ship is not permanently registered
under the laws and flag of the Flag State within the time limit imposed
by the relevant Flag State (subject always to the relevant Mortgage
remaining in full force and effect);
10.1.24 Unrest: any of the Flag States becomes involved in hostilities or civil
war or there is a seizure of power in any of the Flag States 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 the Agent be expected to have a material
adverse effect (i) on the business, assets, operations, property or
financial condition of any Security Party or the Borrower's Group taken
as a whole or (ii) 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: the Borrower or any Owner 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; or
10.1.27 Parent company: any Owner ceases to be a wholly-owned Subsidiary of the
Borrower and/or the Borrower (without the prior written consent of the
Banks) ceases to be a listed company on NASDAQ or other stock exchange
acceptable to the Arrangers in their sole discretion and/or the
beneficial shareholding of each of Gabriel Petridis and Mans Bolin in
the Borrower falls below 10% of the issued shares in the capital of the
Borrower; or
10.1.28 Breach of Contract: there is a material breach by the Borrower or any
Owner, a Seller or a Builder of any Contract or the Borrower fails to
repay any Advance constituting (in part) Expected Project Costs
representing a deposit under a Contract relating to a purchase of an
Additional Ship which is a second hand vessel within ten (10) days of
the date of expiry or termination of the relevant Contract; or
10.1.29 Termination or variation of a Contract: a Contract is terminated for any
reason whatsoever or a Contract is frustrated or varied in any manner
not permitted by or pursuant to the relevant Pre-delivery Security
Assignment or this Agreement; or
10.1.30 Termination of a Refund Guarantee: a Refund Guarantee is repudiated,
cancelled, rescinded or otherwise terminated; or
10.1.31 Non-Delivery of Ship: a Ship is not delivered to, and accepted by, the
Borrower or relevant Owner under a Contract on or before the final
permitted delivery date under the said Contract (or such later date as
the Banks and/or the Agent in their absolute discretion, may agree in
writing); or
10.1.32 Material events: any other event occurs or circumstance arises which, in
the opinion of the Banks and/or the Agent, is likely materially and
adversely to affect either
(a) the ability of any Security Party to perform all or any of its
obligations under or otherwise to comply with the terms of any
of the Security Documents or the Master Swap Agreements; or
(b) the security created by any of the Security Documents; or
10.1.33 Failure to drawdown Delivery Date Advance: the Borrower fails to
drawdown a Delivery Date Advance without the prior written consent of
the Agent which shall not be unreasonably withheld; or
10.1.34 Intra-Group Loans Agreements: the Borrower demands or accepts any
repayments of principal or interest or any other sum payable under the
Intra-Group Loan Agreements save as envisaged by clause 14.5 or takes
any action against any Owner without the prior written consent of the
Agent.
10.2 Acceleration
The Agent may, with the prior approval of the Majority Banks and without
prejudice to any other rights of the Banks, at any time after the
happening of an Event of Default by notice to the Borrower declare that:
10.2.1 the obligation of each Bank to make its Commitment available shall be
terminated, whereupon the Commitment of each Bank 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 (with the prior approval of the
Majority Banks) by written notice to the Borrower:
10.3.1 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
10.3.2 withdraw such declaration with effect from the date specified in such
notice.
11 Indemnities
11.1 Miscellaneous indemnities
The Borrower shall on demand indemnify each Finance Party, without
prejudice to any of their other rights under any of the Security
Documents or the Master Swap Agreements, against any loss (including
loss of Margin) or expense which the Finance Parties shall certify as
sustained or incurred by it as a consequence of:
11.1.1 any default in payment by the Borrower of any sum under any of the
Security Documents when due;
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 clause 4.2,
4.5, 8.2.1 or 12.1, or any other repayment 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 in relation thereto has
been given,
including, in any such case, but not limited to, any loss or expense
sustained or incurred by any Bank in maintaining or funding its
Contribution or any part thereof or in liquidating or re-employing
deposits from third parties acquired to effect or maintain its
Contribution or any part thereof or any other amount owing to such Bank
Provided always that no such indemnity shall be payable in the case
where such loss or expenses sustained or incurred has arisen as a result
of the gross negligence or wilful misconduct of the Finance Parties.
11.2 Currency indemnity
If any sum due from the Borrower 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:
11.2.1 making or filing a claim or proof against the Borrower;
11.2.2 obtaining an order or judgment in any court or other tribunal; or
11.2.3 enforcing any order or judgment given or made in relation to any of the
Security Documents, the Borrower shall indemnify and hold harmless the
Agent and each Bank from and against any loss suffered as a result of
any difference between:
(a) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency; and
(b) the rate or rates of exchange at which the Agent and/or any Bank
may in the ordinary course of business purchase the first
currency with the second currency upon receipt of a sum paid to
it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. Any amount due from the Borrower under
this clause 11.2 shall be due as a separate debt and shall not
be affected by 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.
11.3 Environmental indemnity
The Borrower shall indemnify each Finance Party on demand in respect of
all costs, claims, losses, demands, liabilities, penalties and fines, of
whatever nature (including, without limitation, those arising under
Environmental Laws) which may be incurred or made against any Finance
Party at any time 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 any Finance Party which would or could
not have been brought if such Finance Party had not entered into any of
the Security Documents 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 to, or to maintain its Commitment or fund its
Contribution such Bank shall promptly, through the Agent, give notice to
the Borrower whereupon:
12.1.1 such Bank's Commitment shall be reduced to zero; and
12.1.2 the Borrower shall be obliged to prepay the Contribution of such Bank
either:
(a) forthwith; or
(b) on a future specified date not being earlier than the latest
date permitted by the relevant law or regulation together with
interest and commitment commission accrued to the date of
prepayment and all other sums payable by the Borrower under this
Agreement.
In any such event the Borrower and the Banks shall (as per the
provisions of clause 12.2) negotiate in good faith (but without
incurring any legal obligations) with a view to agreeing terms for
making the Loan or any Advance (as the case may be) available from
another jurisdiction or funding the Loan or any Advance (as the case may
be) from alternative sources.
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 the Commitment available or
maintaining or funding its Contribution; and/or
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 its 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 it 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 from its capital for
regulatory purposes,
then and in each such case (subject to clause 12.3):
(a) such Bank shall notify the Borrower in writing of such event
promptly upon its becoming aware of the same; and
(b) the Agent shall negotiate with the Borrower 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 Agent 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
Borrower of or otherwise adversely affect the rights, and
interests of the Borrower 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 Borrower has been given notice under clause
12.2.6(a) 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
Borrower have not reached agreement on a restructuring of the
transaction on the basis described in sub-clause (b) above then
the Borrower 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
the 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 such
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 6.7.
13 Security, set-off and pro-rata payments
13.1 Application of moneys
All moneys received by the Agent and/or the Banks under or pursuant to
any of the Security Documents and expressed to be applicable in
accordance with the provisions of this clause 13.1 shall be applied by
the Agent and/or the Banks in the following manner:
13.1.1 first in or toward payment of all unpaid fees, commissions and expenses
which may be owing to any Finance Party (other than the Swap Banks)
under any of the Security Documents (other than the Master Swap
Agreements);
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 any Bank for any loss suffered by
reason of any such payment in respect of principal not being effected on
an Interest Payment Date relating to the part of the Loan repaid;
13.1.5 fifthly in or towards payment to any Finance Party of any other sums
owing to it under any of the Security Documents;
13.1.6 sixthly in or towards payments to the Swap Banks of any sum (including
without limitation all unpaid, fees, commissions and expenses) owing to
the Swap Banks under the Master Swap Agreements and on a pro rata basis
as between such Swap Banks;
13.1.7 seventhly, in or towards payments to any Swap Bank of any other sums
owing to it under any of the Security Documents and/or the Master Swap
Agreements; and
13.1.8 lastly, the surplus (if any) shall be paid to the Borrower or to
whomsoever else may be entitled to receive such surplus,
or in such other manner as the Banks may determine.
13.2 Set-off
The Borrower authorises each Bank (without prejudice to any of such
Bank's rights at law, in equity or otherwise), at any time and without
notice to the Borrower:
13.2.1 to apply any credit balance to which the Borrower is then entitled
standing upon any account of the Borrower with any branch of such Bank
in or towards satisfaction of any sum due and payable from the Borrower
to such Bank under any of the Security Documents;
13.2.2 in the name of the 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
13.2.3 to combine and/or consolidate all or any accounts in the name of the
Borrower with such Bank.
For this purpose, 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 Borrower 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.
13.3 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 Substitute 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, 4.3, 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 (2) 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 Borrower and shall distribute the same in accordance with
clause 13.1; and
13.3.3 as between the Borrower and the Recovering Bank the excess amount shall
be treated as not having been paid but the obligations of the Borrower
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
(a) 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 Borrower undertakes that the Security Documents shall both at the
date of execution and delivery thereof and so long as any moneys are
owing under any of the Security Documents be valid and binding
obligations of the respective parties thereto and rights of the Agent
enforceable in accordance with their respective terms and that it will,
at its expense, execute, sign, perfect and do, and will procure the
execution, signing, perfecting and doing by each of the other Security
Parties of, any and every such further assurance, document, act or thing
as in the reasonable opinion of the Agent and/or any other Finance Party
may be necessary or desirable for perfecting the security contemplated
or constituted by the Security Documents.
13.7 Conflicts
In the event of any conflict between this Agreement and any of the other
Borrower's Security Documents, the provisions of this Agreement shall
prevail.
14 Accounts
14.1 General
The Borrower undertakes with each of the Finance Parties that it will:
14.1.1 on or before the first Drawdown Date open and procure that each Owner
will open each of the Earnings Accounts and procure that the Manager
opens the Manager's Account;
14.1.2 on or before the first Drawdown Date open the Retention Account; and
14.1.3 procure that all moneys payable to the Borrower and/or the Owners in
respect of the Earnings of the Ships shall, unless and until the Agent
directs to the contrary pursuant to proviso (a) to clause 2.1 of the
relevant Deed of Covenant or relevant General Assignment, be paid to the
Earnings Accounts Provided however that if any of the moneys paid to the
Earnings Accounts are payable in a currency other than Dollars, the
Borrower pay and shall procure that the relevant Owner 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 Accounts terms
The Banks acknowledge that the relevant Owner shall, unless and until a
Default shall occur and the Agent shall direct to the contrary, be
entitled from time to time, subject to the agreement of the Account Bank
to require that moneys for the time being standing to the credit of the
Earnings Accounts be transferred in such amounts and for such periods as
the Borrower or relevant Owner selects to fixed-term deposit accounts
("deposit accounts") opened in the name of the relevant Owner with the
Account Bank. The relevant Owner shall not be entitled pursuant to
clause 14.3 to withdraw moneys standing to the credit of the Earnings
Accounts which are the subject of a fixed term deposit until the expiry
of the period of such deposit unless the relevant Owner shall, on
withdrawing such moneys pay to the Account Bank on demand any loss or
expense which the Account Bank shall certify that it has sustained or
incurred as a result of such withdrawal being made prior to the expiry
of the period of the relevant deposit and the Account Bank shall be
entitled to debit the Earnings Accounts for the amount so certified
prior to such withdrawal being made. In the event that any moneys so
deposited are to be applied pursuant to clause 14.5, the Borrower or
relevant Owner shall, on such application being made, pay to the Account
Bank on demand any loss or expense which the Account Bank shall certify
that it has sustained or incurred as a result of such application being
made prior to the expiry of the period of the relevant deposit and the
Account Bank shall be entitled to debit the relevant Earnings Account
for the amount so certified prior to such application being made. Any
deposit accounts shall, for all the purposes of the Security Documents,
be deemed to be sub-accounts of Earnings Accounts from which the moneys
deposited in the deposit accounts were transferred and all references in
the Security Documents to the Earnings Accounts shall be deemed to
include the deposit accounts deemed as aforesaid to be sub-accounts
thereof.
14.3 Earnings Accounts: withdrawals
Unless the Majority Banks otherwise agree in writing, neither the
Borrower nor the Owners shall be entitled to withdraw any moneys from
the Earnings Accounts at any time during the Security Period save that,
unless and until a Default shall occur and the Agent shall direct to the
contrary, the Borrower and each of the Owners may, subject to clause
14.2, withdraw moneys from the Earnings Accounts:
14.3.1 to transfer to the Retention Account on each Retention Date all or part
of the Retention Amount for such Retention Date;
14.3.2 to pay any amount to the Agent and/or the other Finance Parties in or
towards payments of any instalments of interest or principal or any
other amounts then payable pursuant to the Security Documents (including
any amounts owing to the Swap Banks under the Master Swap Agreements)
and the Borrower hereby irrevocably and unconditionally instructs the
Account Bank to make such payments on their due date if and to the
extent the Borrower does not issue the appropriate instructions on or
before such due date;
14.3.3 prior to the Delivery Date of a Ship to apply any sums deposited to the
relevant Earnings Account by the Agent as Expected Project Costs for
such Ship in full and final payment of such Expected Project Costs
subject always to the relevant Owner applying no more than the sum
deposited to the relevant Earnings Account by the Agent;
14.3.4 following the Delivery of a Ship to pay the proper and reasonable
operating expenses (including costs of insuring, repairing and
maintaining such Ship) of such Ship and the proper and reasonable
expenses of administering the affairs of the relevant Owner;
14.3.5 to pay any Manager's remuneration under any Management Agreement in the
amounts and at the times therein stated;
14.3.6 to pay or discharge liabilities or obligations to third parties not
exceeding the aggregate of any deductible under a Ship's insurances
applicable to such liabilities or obligations and the amount of any
insurance moneys in respect of such liabilities or obligations which
have been paid by such Ship's insurers to the relevant Earnings Account
with the knowledge and approval of the Agent;
14.3.7 to pay for the making good and/or repair of any loss or damage resulting
from a casualty to a Ship not exceeding the aggregate of any deductible
under such Ship's insurances applicable to such casualty and the amount
of any insurance moneys in respect of such casualty (not exceeding the
costs of making good and/or repairing any such loss or damage) which
have been paid by such Ship's insurers to the relevant Earnings Account
with the knowledge and approval of the Agent; and
14.3.8 to pay any dividends to any of its shareholders to the extent that it is
permitted to do so in accordance with the provisions of clause 8.3.12.
14.4 Retention Account terms
14.4.1 Subject to sub-clause 14.4.3, the Borrower undertakes with the Agent and
the Finance Parties that it will, from the date of this Agreement and so
long as any moneys are owing under the Security Documents, on each
Retention Date pay to the Account Bank for credit to the Retention
Account, the Retention Amount for such Retention Date.
14.4.2 In the event that, at any time prior to the date falling one month
before any Reduction Date, the Borrower shall draw down a further
Advance or another Retention Event occurs, the Borrower shall, subject
to sub-clause 14.4.3, on each of the Retention Dates (following the
occurrence of the relevant Retention Event) up to and including the next
following Reduction Date pay to the Retention Account on a pro-rata
basis such amount as when applied against the Loan, will ensure that on
the relevant Reduction Date the Loan does not exceed the Commitment.
14.4.3 To the extent that there are moneys standing to the credit of the
Earnings Accounts pursuant to sub-clauses 14.3.1 and/or 14.3.2 as at the
relevant Retention Date, such moneys shall, up to the amount required to
be paid pursuant to either of sub-clauses 14.3.1 or 14.3.2, be
transferred to the Retention Account on such Retention Date (and the
Borrower hereby instructs the Account Bank to effect such transfer) and
to that extent the Borrower's obligations to make the payments referred
to in sub-clauses 14.3.1 and 14.3.2 shall have been fulfilled upon such
transfer being effected.
14.4.4 Unless and until there shall occur an Event of Default (whereupon the
provisions of clause 14.6 shall apply), all Retention Amounts credited
to the Retention Account together with interest from time to time
accruing or at any time accrued thereon shall be applied by the Account
Bank (and the Borrower hereby irrevocably and unconditionally instructs
the Account Bank so to apply the same) in the following manner:
(a) upon each Reduction Date, and on each day that interest is
payable pursuant to clause 3.1 whether in respect of an Advance
or the Loan, in or towards payment to the Agent of that sum that
may need to be repaid on the relevant Reduction Date to ensure
that the Loan does not exceed the Commitment on such Reduction
Date or (as the case may be) the amount of interest then due.
Each such application by the Account Bank shall constitute a
payment in or towards satisfaction of the Borrower's
corresponding payment obligations under this Agreement but shall
be strictly without prejudice to the obligations of the Borrower
to make any such payment to the extent that the aforesaid
application by the Account Bank is insufficient to meet the
same; and
(b) following any application by the Account Bank pursuant to clause
14.4.4(a) in transfer to the Earnings Accounts of any moneys
standing to the credit of the Retention Account to the extent
that such moneys do not constitute Retention Amounts or any
payments received from the Swap Banks pursuant to the provisions
of the Swap Assignment.
14.4.5 Unless the Agent otherwise agrees in writing and subject to clause
14.4.4, the Borrower shall not be entitled to withdraw any moneys from
the Retention Account at any time from the date of this Agreement and so
long as any moneys are owing under the Security Documents.
14.5 Repayment under the Intra-Group Loan Agreements
The Borrower acknowledges and agrees that until such time as all sums
due and payable under this Agreement and each of the other Security
Documents have been satisfied in full the obligation of each Owner to
pay all sums of principal and interest and any other sums payable under
the relevant Intra-Group Loan Agreements shall be fully satisfied by
that Owner depositing the relevant sums to the credit of its Earnings
Account and the Borrower hereby irrevocably and unconditionally
acknowledges that all moneys from time to time standing to the credit of
the Earnings Accounts shall be freely available to the Agent for
application in or towards payment of any instalments of principal or
interest or any other amounts then due and payable pursuant to this
Agreement and any of the other Security Documents.
14.6 Application of Accounts
At any time after the occurrence of an Event of Default, the Agent
and/or the Banks may instruct the Account Bank, without notice to the
Borrower and/or the Owner, to apply all moneys then standing to the
credit of the Accounts (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 Finance
Parties under the Security Documents in the manner specified in clause
13.1.
14.7 Security over account
The Accounts and all amounts from time to time standing to the credit
thereof shall be subject to the security constituted and the rights
conferred by the Accounts Charges.
15 Assignment, substitution and lending office
15.1 Benefit and burden
This Agreement shall be binding upon, and enure for the benefit of, the
Finance Parties, the Borrower and their respective successors.
15.2 No assignment by Borrower
The Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Banks.
15.3 Assignment by Banks
Each Bank may assign all or any part of its rights subject to a minimum
assignment amount of five million Dollars ($5,000,000) in respect of its
Contribution under this Agreement or under any of the other Security
Documents to any other bank or financial institution or to a trust, fund
or other entity which is regularly engaged in or established for the
purpose of making, purchasing or investing in liens, securities or other
financial assets (an "Assignee") with the approval of the Agent (which
consent shall not be unreasonably withheld or delayed) and subject to no
Default having occurred, the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed), provided always that no
such approval or consent shall be required where the Assignee shall be a
Related Company of the relevant Bank, the Agent and the Borrower
approving and consenting to such arrangement by their execution of this
Agreement.
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 another
person subject to a minimum transfer amount of five million Dollars
($5,000,000) to be transferred (a "Substitute") and provided that no
Default has occurred and is continuing the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed). Any such
novation shall be effected upon five (5) 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
Borrower and the other Banks) and following receipt by the transferring
Bank from the Substitute of an amount equal to the purchase price to be
paid by the Substitute for the Contribution being transferred. 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; and
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, on the date upon which such novation takes effect, the Substitute
shall pay to the Agent for its own account a transfer fee of three
thousand Dollars ($3,000). 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
Borrower.
15.5 Reliance on Substitution Certificate
The Agent, the Banks and the Borrower 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
Banks nor the Borrower 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
The Borrower and each of the Banks irrevocably authorise the Agent to
countersign each Substitution Certificate on its behalf without any
further consent of, or consultation with, the Borrower or such Bank (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 Borrower undertakes, 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 Provided always that such change of office shall not
result in an increase in the obligations of the Borrower under clause
6.7. If the office through which such Bank is lending is changed
pursuant to this clause 15.9, such Bank shall notify the Agent promptly
of such change and the Agent shall notify the Banks and the Borrower.
15.10 Disclosure of information
Any Bank or the Agent may, with the prior consent of the Borrower which
shall not be unreasonably withheld, disclose to a prospective assignee,
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 information about the Borrower.
16 Agent
16.1 Appointment of the Agent
The terms and basis on which the Agent has been appointed by the Banks
as facility agent and 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 Banks and
the Agent.
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 (3) 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) to the Borrower and any Owner at:
Aries Maritime Transport Limited
C/O AMT Management Ltd.
18 Zerva Nap, 1st Floor,
Athens 16675
Greece
Fax no: +30 210 89 83 788
Attention: Mans Bolin, Chief Executive Officer
(b) to the Agent and/or the Banks at:
The Governor and Company of the Bank of Scotland
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax No: +44 131 659 0387
Attention: Marine Finance
(c) to the Arrangers at:
The Governor and Company of the Bank of Scotland
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax No: +44 131 659 0387
Attention: Marine Finance
Nordea Bank Finland plc, London Branch
8th Floor
City Place House
55 Basinghall Street
London EC2V 5NB
England
Fax No: +44 207 726 9188
Attention: Shipping, Offshore & Oil Services
(d) to the Swap Banks at:
Nordea Bank Finland plc, London Branch
8th Floor
City Place House
55 Basinghall Street
London EC2V 5NB
England
Fax No: +44 207 726 9188
Attention: Shipping, Offshore & Oil Services
HBOS Treasury Services plc
33 Old Broad Street
London EC2N 1HZ
Fax No: +44 207 574 8133
Attention: Managing Director
The Governor and Company of Bank of Scotland
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax No: +44 131 659 0387
Attention: Marine Finance
Bank of Ireland
La Touche House
4th floor
Dublin 1
Fax No: +353 1 611 5379
Attention: John Hartigan
HSH Nordbank AG
Gerhart - Hauptmann-Platz 50
20095 Hamburg
Germany
Fax No: +49 40 3333 34118
Attention: Shipping, Greek Clients
SMBC Capital Markets, Inc.
277 Park Avenue, 5th Floor
New York
NY 10172
USA
Fax No: +1 212 224 4948
Attention: President
or to such other address and/or numbers as is notified by one party to
the other party under this Agreement.
17.2 No implied waivers, remedies cumulative
No failure or delay on the part of the Agent, the Banks 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 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
All certificates, instruments and other documents to be delivered under
or supplied in connection with any of the Security Documents shall be in
the English language or shall be accompanied by a certified English
translation upon which the Bank shall be entitled to rely.
17.4 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 shall
together constitute one and the same instrument.
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
The Borrower agrees, for the benefit of the Agent and the Banks, that
any legal action or proceedings arising out of or in connection with
this Agreement against the Borrower or any of its assets may be brought
in the English courts. The Borrower irrevocably and unconditionally
submits to the jurisdiction of such courts and irrevocably designates,
appoints and empowers Seabreeze (UK) Limited at present of Hampton
House, 20 Albert Embankment, London SE1 7TJ, England 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 Agent and/or the Banks to take proceedings against the
Borrower in the courts of any other competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether concurrently or
not.
The parties further agree that only the Courts of England and not those
of any other State shall have jurisdiction to determine any claim which
the Borrower may have against the Agent, the Banks or any of them
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
Schedule 1
Part 1 - The Banks and their Commitments
Name Address and fax Commitment ($)
- ---- --------------- --------------
The Governor and Company of New Uberior House $50,000,000
the Bank of Scotland 11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax: +44 131 659 0387
Nordea Bank Finland plc, 8th Floor $50,000,000
London Branch City Place House
55 Basinghall Street
London EC2V 5HB
England
Fax: +44 207 726 9188
HSH Nordbank AG HSH Nordbank AG $40,000,000
Gerhart - Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333 34118
The Governor and Company of Lower Baggot Street $35,000,000
the Bank of Ireland Dublin 2
Ireland
Fax: +353 1 611 5411
Att: John Hartigan
Sumitomo Mitsui Banking Avenue des Arts 58 $35,000,000
Corporation, Brussels Branch Box 18
1000 Brussels, Belgium
Fax: +44 (0)207 786 1569
Att: European Loan Operations
Email:lesley_kelly@gb.smbcgroup.com,
ainsley_bastick@gb.smbcgroup.com
with copy to
Fax: +32 2 5131601
Att: Jean-Luc Renard
Email:
jean-luc_renard@be.smbcgroup.com
Bayerische Hypo- und Kardinal-Faulhaber-Str.1 $30,000,000
Vereinsbank AG 80311 Munchen acting through
its office at
Alter Wall 22
20457
Hamburg
Fax: +49 40 3692 3696
Commerzbank Hamburg Branch $30,000,000
Aktiengesellschaft Ness 7-9,
D-20457 Hamburg
Germany
Fax: +49 (0)40 3683 2049
Att: Bjorn Brandmahl
Email:
bjoern.brandmaehl@commerzbank.com
General Electric Capital c/o GE Transportation Finance $30,000,000
Corporation 201 High Ridge Road
Stamford
Connecticut 06927
USA
Fax: +1 203 585 0597
Natexis Banques Populaires 45, rue Saint Dominique $30,000,000
75007 Paris
France
Fax: +33 1 58 19 36 60
Att:
David Bonicel/Michel Degermann
Email: david.bonicel@nxbp.fr/
michel.degermann@nxbp.fr
Swedbank Brunkebergstorg 8 $30,000,000
(Foreningssparbanken AB Swedbank Shipping E421
(Publ)) SE-105 34 Stockholm
Sweden
Fax: +46 8 723 7150
Att: Dagobert
Billsten and/or Karin Nilsson
Email:
dagobert.billsten@swedbank.com,
karin.nilsson@swedbank
TOTAL $360,000,000
Part 2 - The Swap Banks
Name Address and fax
- ---- ---------------
The Governor and Company New Uberior House
of the Bank of Scotland 11 Earl Grey Street
Edinburgh EH3 9BN
Scotland
Fax: +44 131 659 0387
HBOS Treasury Services plc 33 Old Broad Street
London
EC2N 1HZ
Fax: +44 20 7574 8133
Nordea Bank Finland plc, 8th Floor
London Branch City Place House
55 Basinghall Street
London EC2V 5HB
England
Fax: +44 207 726 9188
The Governor and Company Lower Baggot Street
of the Bank of Ireland Dublin 2
Ireland
Fax: +353 1 604 4796
Att: Ann Marie Dodd
Email: annmarie.dodd@boimail.com
HSH Nordbank AG HSH Nordbank AG
Gerhart - Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333 34118
SMBC Capital Markets, Inc. 277 Park Avenue, 5th Floor
New York
NY 10172
USA
Fax : +1 212 224 4948
Part 3 - The Co-Arrangers
Name Address and fax
The Governor and Company Lower Baggot Street
of the Bank of Ireland Dublin 2
Ireland
Fax: +353 1 604 4796
Att: Ann Marie Dodd
Email: annmarie.dodd@boimail.com
HSH Nordbank AG HSH Nordbank AG
Gerhart - Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333 34118
Sumitomo Mitsui Banking Avenue des Arts 58
Corporation, Brussels Branch Box 18
1000 Brussels, Belgium
Fax: +44 (0)207 786 1569
Att: European Loan Operations
Email:
lesley_kelly@gb.smbcgroup.com,
ainsley_bastick@gb.smbcgroup.com
with copy to
Fax: +32 2 5131601
Att: Jean-Luc Renard
Email:jean-luc_renard@ be.smbcgroup.com
Schedule 2
Part 1 - Initial Ships
Country
Country of Official of Underlying
Ship Owner Incorporation of Owner Flag Number Registration
- ---- ----- ---------------------- ---- ------ ------------
"BORA" Bora Limited British Virgin Islands Venezuela 1878 Marshall Islands
"NORDANVIND" Ermina Marine Limited Marshall Islands Venezuela 1879 Marshall Islands
"CITIUS" Vintage Marine S.A. Marshall Islands Marshall Islands 2129 N/A
"HIGH LAND" Land Marine S.A. Marshall Islands Marshall Islands 2396 N/A
"HIGH RIDER" Rider Marine S.A. Marshall Islands Marshall Islands 2397 N/A
"ALTIUS" Altius Marine S.A. Marshall Islands Marshall Islands 2394 N/A
"FORTIUS" Fortius Marine S.A. Marshall Islands Marshall Islands 2395 N/A
"OCEAN HOPE" Jubilee Shipholding S.A. Marshall Islands Marshall Islands 2128 N/A
"ANL ENERGY" Olympic Galaxy Shipping Limited Marshall Islands Marshall Islands 2062 N/A
"CMA CGM FORCE" Dynamic Maritime Company Marshall Islands Marshall Islands 2065 N/A
"CMA CGM MAKASSAR" Makassar Marine Ltd. Marshall Islands Marshall Islands 2392 N/A
"CMA CGM SEINE" Seine Marine Ltd. Marshall Islands Marshall Islands 2391 N/A
"CHINOOK" Chinook Waves Corporation Marshall Islands Marshall Islands 2490 N/A
"STENA COMPASS" Compass Overseas Ltd. Bermuda Bermuda 733757 N/A
"STENA COMPASSION" Compassion Overseas Ltd. Bermuda Bermuda N/A
Ship Year
Ship Classification Type Built Deadweight/TEU Charterer
- ---- -------------- ---- ----- -------------- ---------
"BORA" > HULL, MACH, FLS TANKER ESP Tanker 2000 38,701 dwt PDVSA Petroleo S.A
Unrestricted Navigation
"NORDANVIND" > HULL, Tanker 2001 38,701 dwt PDVSA Petroleo S.A.
> MACH, OIL TANKER, ESP
Unrestricted Navigation
"CITIUS" > HULL, Tanker 1986 83,970 dwt ST Shipping and
> MACH, OIL TANKER, ESP Transportation Inc.
Unrestricted Navigation
> AUT-UMS, IG
"HIGH LAND" NS (tanker, Oils-Flashpoint below Tanker 1992 41,450 dwt D'Amico Tankers Limited
60(Degree)C) (ESP) MNS*
"HIGH RIDER" NS (tanker, Oils-Flashpoint below Tanker 1991 41,502 dwt D'Amico Tankers Limited
60(Degree)C) (ESP) MNS*
"ALTIUS" I> HULL, Tanker 2004 73,400 dwt Deiulemar-Compagnia de
> MACH, OIL TANKER, ESP Navigazione S.p.A/ENE2
Unrestricted Navigation
> AUT-UMS, IG > AUT-PORT
"FORTIUS" I> HULL, Tanker 2004 73,400 dwt Deiulemar-Compagnia de
> MACH, OIL TANKER, ESP Navigazione S.p.A/ENE2
Navigazione
> AUT-UMS, IG
> AUT-PORT; VCS
"OCEAN HOPE" > HULL, Container 1989 1,799 TEU China Shipping Container
> MACH, FLS TANKER, ESP Lines (Asia) Co. Limited
Unrestricted Navigation
> AUT-PORT
"ANL ENERGY" *100-A-1.1 Nav IL; T Cont Container 1989 2,438 TEU CMA CGM S.A.
> IAP;
> IAQ-1
"CMA CGM FORCE" I> HULL, Container 1989 2,438 TEU CMA CGM S.A.
> MACH, Container Ship,
Unrestricted Navigation
> AUT-PORT; VCS
"CMA CGM MAKASSAR" 100 A1 CONTAINER SHIP LMC UMS SCM Container 1990 2,917 TEU CMA CGM S.A.
"CMA CGM SEINE" 100 A1 CONTAINER SHIP LMC UMS SCM Container 1990 2,917 TEU CMA CGM S.A.
"CHINOOK" Hull: > 100 A5 ESP, ERS, NLS, T3D21, Tanker 2001 38,701 dwt PDVSA
Oil Tanker with Double Hull
Machinery:
> MC INERT
"STENA COMPASS" > 1A1 Tanker for Oil ESP E0 VCS-2, Tanker 2006 72,750 dwt Panvision Ltd
TMON Nauticus (Stena Group)
(Newbuilding)
"STENA COMPASSION" Tanker 2006 72,750 dwt Panvictory Ltd
(Stena Group)
Part 2 - Additional Ship Selection Criteria
(A) Each Additional Ship shall:
1 be a double hull crude oil or double hull product oil tanker or a
container ship;
2 be aged 8 years or less on the relevant Delivery Date, or such other age
as may be agreed by the Majority Banks;
3 maintain a flag and class acceptable to the Majority Banks;
4 be wholly owned by the Borrower or an Additional Owner; and
5 have a purchase price which shall not exceed the Fair Market Value for
such Additional Ship.
(B) The Majority Banks shall be satisfied that the Borrower shall be able to
procure that such Additional Ship shall be subject to Acceptable
Employment within six (6) months after the Drawdown Date relative to the
Advance relating to such Additional Ship.
Part 3 - Maximum amount of Advance
Initial Ships Maximum Amount
------------- --------------
$
"BORA" 11,220,096
"NORDANVIND" 11,889,953
"HIGH LAND" 9,043,061
"HIGH RIDER" 8,708,134
"ALTIUS" 17,332,536
"FORTIUS" 17,332,536
"CITIUS" 7,200,957
"OCEAN HOPE" 8,373,206
"ANL ENERGY" 10,885,167
"CMA CGM FORCE" 10,885,167
"CMA CGM MAKASSAR" 13,564,593
"CMA CGM SEINE" 13,564,593
"CHINOOK" 32,600,000
"STENA COMPASS" 56,100,000
"STENA COMPASSION" 5,610,000
------------
$234,309,999
Part 4 - Details of Initial Owners
Initial Owner Country of Incorporation Address Shareholder
- ------------- ------------------------ ------- -----------
Bora Limited British Virgin Islands Road Town, Tortola, British Virgin Islands Borrower
Registered agent:
Mossack Fonseca & Co. (B.V.I.) Ltd.
Akara Building, 24 De Castro Street, Wickhams Cay
1, Road Town, Tortola, British Virgin Islands
Ermina Marine Limited Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Vintage Marine S.A. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Land Marine S.A. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Rider Marine S.A. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Altius Marine S.A. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Fortius Marine S.A. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Jubilee Shipholding S.A. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Olympic Galaxy Shipping Limited Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Dynamic Maritime Company Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Makassar Marine Ltd. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Seine Marine Ltd. Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Chinook Waves Corporation Marshall Islands Trust Company Complex, Ajeltake Road, Ajeltake Borrower
Island, Majuro MH 96960, Marshall Islands
Compass Overseas Ltd. Bermuda Canon's Court, 22 Victoria Street, Hamilton HM12, Borrower
Bermuda
Compassion Overseas Ltd. Bermuda Canon's Court, 22 Victoria Street, Hamilton HM12, Borrower
Bermuda
Schedule 3
Form of Drawdown Notice
(referred to in clause 9)
To: The Governor and Company of Bank of Scotland
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
[Date] 200o
Facilities Agreement dated [o] 2006 (the "Agreement")
We refer to the above Agreement and hereby give you notice that we wish to draw
down the sum of [o] [$(o)] representing:
Advance[s] of the Facility [being for general corporate purposes]
[the Contract Instalment Advance payable at [stage]];
[the Delivery Date Advance];
[Expected Project Costs]
on {date} [and select a first Interest Period in respect thereof of o months]
[the first Interest Period in respect thereof to expire on{date}]. The funds
should be credited to [name and number of account] with [details of bank.]
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 of the Agreement; and
(ii) clauses 4.1 and 4.2 of the Owners' Guarantees;
are true and correct at the date hereof as if made with respect
to the facts and circumstances existing at such date [and that
the aggregate of all Advances relative to general corporate
purposes does not exceed $5,000,000];
(c) the borrowing to be effected by the drawdown of the Advance will
be within our corporate powers, will not result in the Loan
exceeding the Commitment, 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 Finance Parties in the
negotiation of the Agreement.
Words and expressions defined in the Agreement shall have the same meanings
where used herein.
For and on behalf of
....................................
ARIES MARITIME TRANSPORT LIMITED
Schedule 4
Part 1
Documents and evidence required as conditions precedent to the Commitment
(referred to in clause 9.1.1)
(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 and 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 (5) Banking Days prior to the date of this Agreement)
by an officer of such Security Party;
(i) being true and correct;
(ii) being duly passed at meetings of the directors of such Security
Party and of the shareholders of such Security Party each duly
convened and held;
(iii) not having been amended, modified or revoked; and
(iv) 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 (5) 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) Certificates of incumbency
a list of directors and officers of each Security Party specifying the
names and positions of such persons, certified (in a certificate dated
no earlier than five (5) Banking Days prior to the date of this
Agreement) by an officer of such Security Party to be true, complete and
up to date;
(e) Know your customer and money laundering compliance
such documents and evidence as the Banks shall require to identify the
Borrower and the other Security Parties and any other persons involved
or affected by the transaction(s) contemplated by this Agreement as
required by any applicable law or the Banks' own "know your customer"
internal guidelines; and
(f) Fees, commissions and expenses
evidence that any fees and commission due from the Borrower pursuant to
the terms of clause 5.1 or any other provision of the Security Documents
and all expenses under clause 5.2 have been paid in full.
Part 2
Documents and evidence required as conditions precedent to the first Advance
(referred to in clause 9.1)
(a) Conditions precedent
evidence that the conditions precedent set out in Part 1 of Schedule 4
remain fully satisfied;
(b) Borrower's consents and approvals
a confirmation from the Borrower that no consents, authorisations,
licences and approvals are necessary in any Relevant Jurisdiction to
enable it to borrow the Loan and to perform its obligations under this
Agreement and each of the other Security Documents and evidence in form
and substance satisfactory to the Arrangers that the Borrower is
properly and validly registered on NASDAQ and that all necessary
consents and approvals whether of a governmental nature or otherwise for
the borrowing of the Loan under this Agreement have been obtained and
remain in full force and effect;
(c) No judgments etc
evidence in form and substance satisfactory to the Agent that there are
no judgments, orders, injunctions or restraints of any kind prohibiting
or imposing materially adverse conditions on the borrowing by the
Borrower of the Loan under this Agreement;
(d) No litigation or other event
evidence in form and substance satisfactory to the Arrangers that there
is no event or existing or threatened litigation by any person with
respect or to the transactions contemplated by the Security Documents or
which the Arrangers shall in their sole discretion determine is
reasonably likely to have a materially adverse effect on the
registration of the Borrower on NASDAQ or on the business, property,
assets, liabilities, financial condition or otherwise or prospects of
the Borrower or of the Borrower's Group taken as a whole, either before
or after giving effect to the consummation of such initial public
offering;
(e) Other consents and approvals
a confirmation from each of the other Security Parties that no consents,
authorisations, licences and approvals are necessary in any Relevant
Jurisdiction to enable that Security Party to enter into and to perform
its obligations under the Security Documents to which it is a party;
(f) Certified Underlying Documents
a copy, certified (in a certificate dated no earlier than five (5)
Banking Days prior to the date of this Agreement) as a true and complete
copy by an officer of the Borrower of each of the Underlying Documents;
(g) Security Documents
all relevant Security Documents (as determined by the Agent in its sole
discretion) including, without limitation, the Master Swap Agreements,
duly executed;
(h) Legal opinions
(i) Bermuda opinion
an opinion of Conyers Dill & Pearman special legal advisers to
the Agent dated no earlier than fifteen (15) days prior to the
date of this Agreement;
(ii) Owner(s)' opinion
an opinion of the Agent's special legal advisers in each
Relevant Jurisdiction with respect to the relevant Owner dated
no earlier than fifteen (15) days prior to the date of this
Agreement;
(iii) New York opinion
an opinion of Healy & Baillie LLP special legal advisers to the
Agent in New York dated no later than fifteen (15) days prior to
the date of this Agreement;
(iv) English law opinion
an opinion of Norton Rose special legal advisers to the Agent as
to matters of the laws of England dated no earlier than fifteen
(15) days prior to the date of this Agreement;
(v) Further opinions
any such further opinion as may be required by the Agent and/or
the Banks;
(i) Borrower's process agent
a copy, certified as a true copy by the Borrower's solicitors or other
person acceptable to the Agent of a letter from the 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 the
Borrower's agent;
(j) Owner's process agent
a copy, certified as a true copy by the Borrower's solicitors or other
person acceptable to the Agent of a letter from the Owner's or the
Security Party's agent for receipt of service of proceedings referred to
in, inter alia, clause 9.2 of the Owner's Guarantee accepting its
appointment under the said clause and under each of the other Security
Documents in which it is or is to be appointed as the Owner's or the
Security Party's agent;
(k) Indebtedness of the Borrower's Group
evidence in form and substance satisfactory to the Arrangers that,
following the borrowing of the Loan by the Borrower under this
Agreement, there shall be no outstanding Indebtedness in respect of the
Borrower's Group, except for Borrowed Money pursuant to the Security
Documents;
(l) Parent company
evidence in form and substance satisfactory to the Arrangers that each
Owner is a wholly-owned Subsidiary of the Borrower and that the Borrower
and each Owner and their respective assets are free of any Encumbrance
except for Permitted Encumbrances;
(m) Valuations
copies, certified by an officer of the Borrower, of valuations of each
relevant Ship dated no earlier than fifteen (15) days prior to the
Drawdown Date of the first Advance setting out the Fair Market Value of
each relevant Ship, such valuations to be conducted in accordance with
clause 8.2.2 and each valuation to be in form and substance acceptable
to the Arrangers;
(n) Solvency certificate
The Arrangers shall have received a solvency certificate signed by the
Chief Financial Officer of the Borrower and certified as correct by the
Borrower's auditor (such auditor to be acceptable to the Arrangers),
such solvency certificate to be in a form and substance acceptable to
the Arrangers and certifying that following the borrowing of the Loan
under this Agreement and incurring all of the other financial
accommodation that the Borrower shall incur, that individually and the
Borrower's Group on a consolidated basis are not insolvent and will not
be rendered insolvent by the Indebtedness incurred in connection with
such transactions and the Borrower and the Borrower's Group will have
sufficient Free Liquid Assets to utilise as working capital to pay the
debts of the Borrower and the Borrower's Group as and when they fall due
(on the basis that the Fleet Market Value shall not be less than
$360,000,000);
(o) No Default under any material agreement
evidence in form and substance satisfactory to the Arrangers that, after
the borrowing of the Loan under this Agreement, there shall be no
Default under any Security Document, Underlying Document or any other
material agreement of the Borrower's Group;
(p) Accounts
evidence that the Accounts have been opened with the Account Bank; and
(q) Fees, commissions and expenses
evidence that any fees and commission due from the Borrower pursuant to
the terms of clause 5.1 or any other provision of the Security Documents
and all expenses under clause 5.2 have been paid in full.
Part 3
Documents and evidence required as a condition
precedent to all Advances being made
(clause 9.1)
(a) Conditions precedent
evidence that the conditions precedent set out in Part 1 and Part 2 of
Schedule 4, remain fully satisfied;
(b) No claim
if an Additional Ship is a newbuilding, evidence satisfactory to the
Agent and/or the Banks that the relevant Builder (and any other party
who may have a claim pursuant to the relevant Contract) has no claims
against such Additional Ship or the Borrower or relevant Owner and that
there have been no breaches of the terms of the relevant Contract or the
Refund Guarantee or any default thereunder;
(c) No variations to Contract
if an Additional Ship is a newbuilding, evidence that there have been no
amendments or variations agreed to the relevant Contract and that no
action has been taken by the Borrower; the relevant Owner or the
relevant Builder which might in any way render the relevant Contract
inoperative or unenforceable, in whole or in part;
(d) No Encumbrance
if an Additional Ship is a newbuilding, evidence that there is no
Encumbrance of any kind created or permitted by any person on or
relating to the relevant Contract other than a Permitted Encumbrance;
(e) Ship conditions
evidence that the Ship for which the relevant Advance is to be made:
(i) Registration and Encumbrances
is registered in the name of the Borrower or the relevant Owner
through the relevant Registry under the laws and flag of the
relevant Flag State and that such Ship and its Earnings,
Insurances and Requisition Compensation (as defined in the
relevant Ship Security Document) are free of Encumbrances;
(ii) Classification
maintains the Classification for such Ship free of all
requirements and recommendations of the relevant Classification
Society; and
(iii) Insurance
is insured in accordance with the provisions of the Security
Documents and all requirements of the 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
(f) Security documents and delivery documents
the relevant Owner's Guarantee and the Ship Security Documents for such
Ship and the relevant Account Charge duly executed;
(g) Borrower's and Owner's further corporate authorisations
copies of the resolutions of the Borrower's and relevant Owner's
directors and shareholders evidencing authorisation of the acceptance of
the delivery of such Ship and authorisation and approval of the Ship
Security Documents for such Ship and the transactions contemplated
therein and any other documents issued or to be issued pursuant thereto
and authorising their appropriate officers or other representatives to
execute the same on their behalf certified in the manner referred to in
paragraph (b) of Part 1 of this Schedule (or other evidence of such
authorisation, approval and/or ratification) and any power of attorney
issued pursuant to the said resolutions;
(h) Other further corporate authorisations
copies of the resolutions of the directors of each Security Party
evidencing authorisation and approval of the Manager's Undertaking for
such Ship to which such Security Party is, or is to be a party and the
transactions contemplated therein and any other documents issued or to
be issued pursuant thereto and authorising its appropriate officer or
other representative to execute the same on its behalf certified in the
manner referred to in paragraph (b) of Part 1 of this Schedule (or other
evidence of such authorisation, approval and/or ratification) and any
power of attorney issued pursuant to the said resolutions;
(i) Updated certificates of incumbency
a list of directors and officers of each Security Party specifying the
names and positions of such persons and copies of the signatures of the
persons who have been authorised on behalf of each Security Party to
sign such of the Underlying Documents and the Security Documents to
which such Security Party is, or is to be, party and to give notices and
communications, including notices of drawing, under or in connection
with the Security Documents, certified (in a certificate dated no
earlier than five (5) Banking Days prior to the Delivery Date for such
Ship) by an officer of such Security Party to be, in the case of the
list of directors, true, complete and up to date and, in the case of the
specimen signatures, true signatures of such persons or a certificate by
an officer of such Security Party that the list provided in respect of
the Security Party pursuant to paragraph (d) of Part 1 of this Schedule
and that the specimen signatures provided in respect of the Security
Party pursuant to paragraph (c) of Part 1 of this Schedule remain true,
complete and up to date;
(j) Management
to the extent not provided pursuant to Schedule 4, Part 1, the Manager's
Undertaking duly executed and copies, certified by an officer of the
Borrower or the relevant Owner, of the Management Agreement for such
Ship;
(k) Mortgage registration
evidence that the Mortgage has been provisionally registered against
such Ship through the Registry for such Ship under the laws and flag of
the Flag State for such Ship;
(l) Notices of assignment and acknowledgements
copies of duly executed notices of assignment required by the terms of
the Security Documents and in the forms prescribed by the Security
Documents;
(m) Bank accounts
evidence that the Earnings Account for such Ship has been opened;
(n) Insurance opinion
an opinion from insurance consultants appointed by the Agent, on the
insurances effected or to be effected in respect of such Ship upon and
following the Delivery Date for such Ship;
(o) Legal opinions
(i) Bermuda opinion
an opinion of Conyers Dill & Pearman special legal advisers in
Bermuda to the Agent;
(ii) English opinion
an opinion of Norton Rose special legal advisers to the Agent as
to matters of the laws of England;
(iii) Flag State opinion
an opinion of the special legal advisers to the Agent in the
Flag State of such Ship and an opinion from the special legal
advisers to the Agent in any Relevant Jurisdiction where such
Ship has its underlying registration as set out in Part 1 of
Schedule 2; and
(iv) Further opinions
any such further opinion as may be required by the Agent and/or
Banks;
(p) Borrower's and Owner's process agent
a copy, certified as a true copy by the Borrower's or relevant Owner's
solicitors or other person acceptable to the Agent of a letter from the
Borrower's or relevant Owner's or the relevant Security Party's agent
for receipt of service of proceedings referred to in each of the
relevant Ship Security Documents in which it is or is to be appointed as
the Borrower's agent;
(q) Valuation
valuation (dated not more than two (2) weeks prior to the Delivery Date
of such Ship) of such Ship in its anticipated condition as at the
Delivery Date of such Ship;
(r) Inspection report
inspection report (dated not more than thirty (30) days prior to the
Delivery Date of such Ship) of such Ship by a surveyor appointed by the
Agent;
(s) Manager's confirmation
the Manager has confirmed in writing that the representations and
warranties set out in clause 7.2.11 are true and correct;
(t) Certificates of financial responsibility
if applicable, a copy of a certificate of financial responsibility
complying with the requirements of the United States Oil Pollution Act
1990 or the United States Comprehensive Environmental Response
Compensation Liability Act 1980 together with evidence of approval
thereof by the relevant regulatory authorities;
(u) Payment of Contract Price
if an Additional Ship is a newbuilding, evidence that the Contract Price
for such Ship has been (or upon drawdown of the Delivery Advance for
such Ship will have been) paid in full;
(v) ISM Code and ISPS Code documentation
a copy, certified by an officer of the Borrower, of the SMC, DOC and
ISSC Certificate for such Ship; and
(w) Fees, commissions and expenses
evidence that any fees and commission due from the Borrower pursuant to
the terms of clause 5.1 and any other provision of the Security
Documents and all expenses under clause 5.2 have been paid in full.
Part 4
Additional documents and evidence required as a condition precedent to any
Contract Instalment Advance and Delivery Date Instalment Advance
(referred to in clause 9.1)
(a) Conditions precedent
evidence that the conditions precedent set out in Part 1 and Part 2 of
Schedule 4, remain fully satisfied;
(b) No claim
evidence satisfactory to the Agent and/or the Banks that the relevant
Builder (and any other party who may have a claim pursuant to the
relevant Contract) has no claims against the Additional Ship or the
Borrower or relevant Owner and that there have been no breaches of the
terms of the relevant Contract or the Refund Guarantee or any default
thereunder;
(c) No variations to Contract
evidence that there have been no amendments or variations agreed to the
relevant Contract and that no action has been taken by the Borrower, the
relevant Owner or the relevant Builder which might in any way render
such Contract inoperative or unenforceable, in whole or in part;
(d) No Encumbrance
evidence that there is no Encumbrance of any kind created or permitted
by any person on or relating to the relevant Contract other than a
Permitted Encumbrance;
(e) Equity contribution
evidence in a form and substance satisfactory to the Agent, that the
Borrower or the relevant Owner has paid to the relevant Builder any
required equity contribution for such Additional Ship;
(f) Invoices
a certified copy of the invoices in respect of which payment is due to
the relevant Builder from the Borrower or the relevant Owner and such
other evidence as the Agent may reasonably require that such payment is
due and payable to such Builder;
(g) Fees, commissions and expenses
evidence that any fees due from the Borrower pursuant to the terms of
clause 5.1 or any expenses under clause 5.2 or any other provision of
the Security Documents have been paid in full; and
(h) Title documents
if the Additional Ship is a newbuilding copies of the Builder's
certificate and bill of sale in favour of the relevant Owner from the
Builder and a protocol of delivery and acceptance duly executed and such
other evidence as the Agent may reasonably require (including evidence
of the Builder's corporate authorisations to deliver title to the
relevant Ship) that the relevant Owner will obtain good title to the
relevant Ship on or before the relevant Delivery Date.
Schedule 5
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 regulations in all
applicable jurisdictions.]
To: THE GOVERNOR AND COMPANY OF BANK OF SCOTLAND on its own behalf, as agent
for the Banks party to the Loan Agreement mentioned below and on behalf
of Aries Maritime Transport Limited.
Attention: [Date]
Substitution Certificate
This Substitution Certificate relates to a $360,000,000 Secured Facilities
Agreement (the "Agreement") dated [ 2006] between (i) Aries Maritime Transport
Limited, (ii) the banks whose respective names and addresses are set out in
Schedule 1 thereto as Banks, (iii) Nordea Bank Finland plc, London Branch and
The Governor and Company of the Bank of Scotland as Arrangers, (iv) Nordea Bank
Finland plc, London Branch and The Governor and Company of the Bank of Scotland
and HBOS Treasury Services plc as Swap Banks and The Governor and Company of the
Bank of Scotland as 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 along with the
transfer fee of $3,000.
2 The Substitute hereby requests the Agent (on behalf of itself and the
other Banks) 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 other 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 Borrower 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.
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 Borrower or any other party to the
Agreement or any of the other Security Documents or for the performance
and observance by the Borrower 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 Borrower 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.
The Schedule
Commitment: $ Portion Transferred: $
Contribution: $ Portion Transferred: $
Next Interest Payment Date:
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 Borrower, the Banks, the Arranger, the Co-Arrangers, the
Swap Banks and the Security Trustee
Schedule 6
Compliance Certificate
To: The Governor and Company of the Bank of Scotland
New Uberior House
11 Earl Grey Street
Edinburgh EH3 9BN
as Agent
From: Aries Maritime Transport Limited
Canon's Court
22 Victoria Street
Hamilton HM EX
Bermuda
Dated: [o]
Dear Sirs
$360,000,000 Facilities Agreement
dated [o] (the "Agreement")
1 We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2 We refer to clause 8.7 of the Agreement and hereby certify that:
(1) Equity Ratio
Requirement: Equity Ratio of not less than 35%.
Satisfied [YES] : [NO]
(2) Minimum Liquidity
Requirement: maintain on a consolidated basis the Minimum
Liquidity.
Satisfied [YES] : [NO]
(3) Working Capital
Requirement: maintain a consolidated basis Working Capital of
not less than zero Dollars ($0).
Satisfied [YES] : [NO]
(4) Interest Coverage
Requirement: maintain a ratio of EBITDA to Interest Payable on a
trailing four (4) Financial Quarter basis of not less than 3.00
to 1.00.
Satisfied [YES] : [NO]
(5) Security Value Maintenance
Requirement: Security Value is not less than the Security
Requirement.
Satisfied [YES] : [NO]
(6) Liquidity of Manager
Requirement: the Manager has a credit balance of not less than
$1,000,000 in the Manager's Account.
Satisfied [YES] : [NO]
3 We confirm that no Default is continuing.*
------------------------
Chief Financial Officer
Aries Maritime Transport Limited
- ----------------------------
for and on behalf of
[name of auditors of the Company]**
- ----------
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy
it.
** Only applicable if the Compliance Certificate accompanies the audited
financial statements and is to be signed by the auditors. To be agreed
with the Company's auditors prior to signing the Agreement.
Schedule 7
Calculation of Additional Cost
1 The Additional Cost is an addition to the interest rate to compensate
Banks for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.
2 On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Bank, in accordance with the paragraphs
set out below. The Additional Cost will be calculated by the Agent as a
weighted average of the Banks' Additional Cost Rates (weighted in
proportion to the percentage participation of each Bank in the relevant
Loan) and will be expressed as a percentage rate per annum.
3 The Additional Cost Rate for any Bank lending from an office in any
member state of the European Community that has adopted or adopts the
Euro as its lawful currency in accordance with the legislation of the
European Community relating to Economic and Monetary Union will be the
percentage notified by that Bank to the Agent. This percentage will be
certified by that Bank in its notice to the Agent to be its reasonable
determination of the cost (expressed as a percentage of that Bank's
participation in all Loans made from that office) of complying with the
minimum reserve requirements of the European Central Bank in respect of
loans made from that office.
4 The Additional Cost Rate for any Bank lending from an Office in the
United Kingdom will be calculated by the Agent as follows:
in relation to an Advance or an unpaid amount in any currency other than
sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
E is designed to compensate Banks for amounts payable under the
Fees Rules and is calculated by the Agent as being the average
of the most recent rates of charge supplied by the Reference
Banks to the Agent pursuant to paragraph 6 below and expressed
in Pounds per (pound)1,000,000.
5 For the purposes of this Schedule:
(a) "Fees Rules" means the rules on periodic fees contained in the
Supervision Manual of the Financial Services Authority Handbook
of rules and guidance or such other law or regulation as may be
in force from time to time in respect of the payment of fees for
the acceptance of deposits;
(b) "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate);
(c) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules; and
(d) "Pounds" and "(pound)" mean the lawful currency of the United
Kingdom.
6 If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in Pounds per (pound)1,000,000 of the
Tariff Base of that Reference Bank.
7 Each Bank shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Bank shall supply the following information on
or prior to the date on which it becomes a Bank:
(a) the jurisdiction of its lending office; and
(b) any other information that the Agent may reasonably require for
such purpose.
Each Bank shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
8 The rates of charge of each Reference Bank for the purpose of E above
shall be determined by the Agent based upon the information supplied to
it pursuant to paragraphs 6 and 7 above and on the assumption that,
unless a Bank notifies the Agent to the contrary, each Bank's
obligations in relation to cash ratio deposits are the same as those of
a typical bank from its jurisdiction of incorporation with a lending
office in the same jurisdiction as its lending office.
9 The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by
any Bank or Reference Bank pursuant to paragraphs 3, 6 and 7 above is
true and correct in all respects.
10 The Agent shall distribute the additional amounts received as a result
of the Additional Cost to the Banks on the basis of the Additional Cost
Rate for each Bank based on the information provided by each Bank and
each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11 Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Additional Cost, an Additional Cost Rate or any amount
payable to a Bank shall, in the absence of manifest error, be conclusive
and binding on all Parties.
12 The Agent may from time to time, after consultation with the Borrower
and the Banks, determine and notify to all Parties any amendments which
are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed
by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence
of manifest error, be conclusive and binding on all Parties.
Borrower
SIGNED by Mons S. Bolin )
for and on behalf of )
ARIES MARITIME TRANSPORT LIMITED )
pursuant to a power of attorney )
dated March 31, 2006 )
/s/ Mons S. Bolin
-----------------
Attorney-in-fact
Arrangers
SIGNED by Rosmarie Soderbory )
for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
/s/ Rosmarie Soderbory
----------------------
Authorised signatory
SIGNED by Chryso Adamou )
for and on behalf of )
NORDEA BANK FINLAND PLC, LONDON )
BRANCH )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
Agent
SIGNED by Rosmarie Soderbory )
for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
/s/ Rosmarie Soderbory
----------------------
Authorised signatory
Banks
SIGNED by Rosmarie Soderbory )
for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
/s/ Rosmarie Soderbory
----------------------
Authorised signatory
SIGNED by Chryso Adamou )
for and on behalf of )
NORDEA BANK FINLAND PLC, LONDON )
BRANCH )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
HSH NORDBANK AG )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
THE GOVERNOR AND COMPANY )
OF THE BANK OF IRELAND )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
SUMITOMO MITSUI BANKING )
CORPORATION )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
BAYERISCHE HYPO- UND )
VEREINSBANK AG )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
COMMERZBANK AKTIENGESELLSCHAFT )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
GENERAL ELECTRIC CAPITAL )
CORPORATION )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
NATEXIS BA )
NQUES POPULAIRES )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
SWEDBANK (FORENINGS- )
SPARBANKEN AB (PUBL.)) )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
Swap Banks
SIGNED by Rosmarie Soderbory )
for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
/s/ Rosmarie Soderbory
----------------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
NORDEA BANK FINLAND PLC, LONDON )
BRANCH )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Oliver Basi )
for and on behalf of )
HBOS TREASURY SERVICES PLC )
/s/ Oliver Basi
---------------
Authorised signatory
SIGNED by Michael Pithey )
for and on behalf of )
HBOS TREASURY SERVICES PLC )
/s/ Michael Pithey
------------------
Authorised signatory
SIGNED by Chryso Adamou )
for and on behalf of )
THE GOVERNOR AND COMPANY )
OF THE BANK OF IRELAND )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
HSH NORDBANK AG )
/s/ Chryso Adamou
-----------------
Authorised signatory
SIGNED by Michael Hartley )
for and on behalf of )
SMBC CAPITAL MARKETS, INC. )
/s/ Michael Hartley
-------------------
Authorised signatory
Co-Arrangers
SIGNED by Chryso Adamou )
for and on behalf of )
THE GOVERNOR AND COMPANY )
OF THE BANK OF IRELAND )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
HSH NORDBANK AG )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SIGNED by Chryso Adamou )
for and on behalf of )
SUMITOMO MITSUI BANKING )
CORPORATION )
/s/ Chryso Adamou
-----------------
Attorney-in-fact
SK 23248 0002 764951