Exhibit 4.3
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CREDIT FACILITY PROVIDING FOR A
SENIOR SECURED TERM LOAN
OF UP TO US$56,500,000
TO BE MADE AVAILABLE TO
VITSI SHIPPING COMPANY LIMITED and PARNIS SHIPPING COMPANY LIMITED,
as joint and several Borrowers,
BY
DVB BANK AG,
Acting through its New York Branch,
as Administrative Agent and Security Trustee,
and the Banks and Financial Institutions
identified on Schedule 1, as Lenders
March 10, 2005
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CONTENTS
PAGE
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1. DEFINITIONS...............................................................1
1.1 Specific Definitions...............................................1
1.2 Computation of Time Periods; Other Definitional Provisions........12
1.3 Accounting Terms..................................................12
1.4 Certain Matters Regarding Materiality.............................12
1.5 Forms of Documents................................................13
2. REPRESENTATIONS AND WARRANTIES...........................................13
2.1 Representations and Warranties....................................13
(a) Due Organization and Power...............................13
(b) Authorization and Consents...............................13
(c) Binding Obligations......................................13
(d) No Violation.............................................13
(e) Filings; Stamp Taxes.....................................13
(f) Litigation...............................................14
(g) No Default...............................................14
(h) Vessels..................................................14
(i) Insurance................................................14
(j) Financial Information....................................14
(k) Tax Returns..............................................14
(l) Chief Executive Office...................................15
(m) Foreign Trade Control Regulations........................15
(n) Equity Ownership.........................................15
(o) Environmental Matters and Claims.........................15
(p) Compliance with ISM Code, the ISPS Code and the MTSA.....16
(q) No Threatened Withdrawal of DOC, ISSC or SMC.............16
(r) Liens....................................................16
(s) Debt.....................................................16
(t) No Proceedings to Dissolve...............................16
(u) Solvency.................................................16
(v) Compliance with Laws.....................................16
(w) Survival.................................................16
3. THE ADVANCES.............................................................17
3.1 (a) Purposes......................................................17
(b) Making of the Advances........................................17
3.2 Drawdown Notice...................................................18
3.3 Effect of Drawdown Notice.........................................18
3.4 Notation of Advances..............................................18
4. CONDITIONS...............................................................18
4.1 Conditions Precedent to the Initial Advance.......................18
(a) Corporate Authority......................................18
(b) The Credit Facility Agreement and the Note...............19
(c) Guarantor Documents......................................19
(d) Guarantor Solvency.......................................19
(e) Environmental Claims.....................................19
(f) Fees.....................................................19
(g) Accounts.................................................19
(h) Compliance Certificate...................................20
(i) Vessel Appraisal.........................................20
(j) Money Laundering Due Diligence...........................20
(k) Legal Opinions...........................................20
4.2 Conditions Precedent re Delivery Advances.........................20
(a) The Vessels..............................................20
(b) Vessel Documents.........................................20
(c) Vessel Liens.............................................21
(d) ISM DOC..................................................21
(e) Legal Opinions...........................................21
4.3 Further Conditions Precedent......................................21
(a) Drawdown Notice..........................................21
(b) Representations and Warranties...........................21
(c) No Event of Default......................................21
(d) No Change in Laws........................................21
(e) No Material Adverse Effect...............................21
4.4 Breakfunding Costs................................................22
4.5 Satisfaction after Drawdown.......................................22
5. REPAYMENT AND PREPAYMENT.................................................22
5.1 Repayment.........................................................22
5.2 Voluntary Prepayment; No Re-Borrowing.............................22
5.3 Mandatory Prepayment..............................................22
5.4 Interest and Costs with Prepayments/Application of Prepayments....23
6. INTEREST AND RATE........................................................23
6.1 Applicable Rate...................................................23
6.2 Default Rate......................................................23
6.3 Interest Periods..................................................23
6.4 Interest Payments.................................................23
7. PAYMENTS ................................................................24
7.1 Place of Payments, No Set Off.....................................24
7.2 Tax Credits.......................................................24
7.3 Sharing of Setoffs................................................24
7.4 Computations; Banking Days. (a)..................................25
8. EVENTS OF DEFAULT........................................................25
8.1 Events of Default.................................................25
(a) Non-Payment of Principal.................................25
(b) Non-Payment of Interest or Other Amounts.................25
(c) Representations..........................................25
(d) Impossibility; Illegality................................25
(e) Mortgage.................................................25
(f) Covenants................................................25
(g) Debt.....................................................25
(h) Ownership of Borrowers...................................26
(i) Bankruptcy...............................................26
(j) Termination of Operations; Sale of Assets................26
(k) Judgments................................................26
(l) Inability to Pay Debts...................................26
(m) Change in Financial Position.............................26
(n) Change in Control........................................26
(o) Cross-Default............................................26
8.2 Indemnification...................................................27
8.3 Application of Moneys.............................................27
9. COVENANTS................................................................28
9.1 Affirmative Covenants.............................................28
(a) Performance of Agreements................................28
(b) Notice of Default, etc...................................28
(c) Obtain Consents..........................................28
(d) Financial Information....................................28
(e) Vessel Valuations........................................29
(f) Corporate Existence......................................29
(g) Books and Records........................................29
(h) Taxes and Assessments....................................30
(i) Inspection...............................................30
(j) Inspection and Survey Reports............................30
(k) Compliance with Statutes, Agreements, etc................30
(l) Environmental Matters....................................30
(m) Vessel Management........................................30
(n) ISM Code, ISPS Code and MTSA Matters.....................31
(o) Brokerage Commissions, etc...............................31
(p) Deposit Accounts; Assignment.............................31
(q) Insurance................................................31
(r) Interest Rate Agreements.................................31
9.2 Negative Covenants................................................31
(a) Liens....................................................31
(b) Debt.....................................................32
(c) Change of Flag, Class, Management or Ownership...........32
(d) Chartering...............................................32
(e) Change in Business.......................................32
(f) Sale or Pledge of Shares.................................32
(g) Sale of Assets...........................................32
(h) Changes in Offices.......................................32
(i) Consolidation and Merger.................................32
(j) Change Fiscal Year.......................................32
(k) Limitations on Ability to Make Distributions.............32
(l) Use of Corporate Funds...................................33
(m) Issuance of Shares.......................................33
(n) No Money Laundering......................................33
(o) Use of Proceeds..........................................33
(p) Guarantor Chief Executive Officer........................33
9.3 Financial Covenants...............................................33
(a) Adjusted Net Worth.......................................33
(b) EBITDA to Fixed Charges..................................33
(c) Minimum Liquidity........................................33
9.4 Asset Maintenance.................................................33
10. ASSIGNMENT...............................................................34
11. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC........................34
11.1 Illegality........................................................34
11.2 Increased Costs...................................................34
11.3 Nonavailability of Funds..........................................35
11.4 Lender's Certificate Conclusive...................................36
11.5 Compensation for Losses...........................................36
12. CURRENCY INDEMNITY.......................................................36
12.1 Currency Conversion...............................................36
12.2 Change in Exchange Rate...........................................36
12.3 Additional Debt Due...............................................36
12.4 Rate of Exchange..................................................36
13. FEES AND EXPENSES........................................................37
13.1 Fees..............................................................37
13.2 Expenses..........................................................37
14. APPLICABLE LAW, JURISDICTION AND WAIVER..................................37
14.1 Applicable Law....................................................37
14.2 Jurisdiction......................................................37
14.3 WAIVER OF JURY TRIAL..............................................38
15. THE AGENTS...............................................................38
15.1 Appointment of Agents.............................................38
15.2 Security Trustee as Trustee.......................................38
15.3 Distribution of Payments..........................................38
15.4 Holder of Interest in Note........................................39
15.5 No Duty to Examine, Etc...........................................39
15.6 Agents as Lenders.................................................39
15.7 Acts of the Agents................................................39
15.8 Certain Amendments................................................40
15.9 Assumption re Event of Default....................................40
15.10 Limitations of Liability..........................................40
15.11 Indemnification of the Agents.....................................41
15.12 Consultation with Counsel.........................................41
15.13 Resignation.......................................................41
15.14 Representations of Lenders........................................41
15.15 Notification of Event of Default..................................41
15.16 No Agency or Trusteeship if not Syndicated........................42
16. NOTICES AND DEMANDS......................................................42
16.1 Notices...........................................................42
17. MISCELLANEOUS............................................................42
17.1 Time of Essence...................................................42
17.2 Unenforceable, etc., Provisions-Effect............................42
17.3 References........................................................42
17.4 Further Assurances................................................42
17.5 Prior Agreements, Merger..........................................43
17.6 Entire Agreement; Amendments......................................43
17.7 Indemnification...................................................43
17.8 Headings..........................................................44
17.9 WAIVER OF IMMUNITY................................................44
SCHEDULE
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1 The Lenders and the Initial Commitments
2 The Borrowers and Vessels
EXHIBITS
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A Form of Note
B Form of Guaranty
C Form of Account Pledge
D Form of Mortgage
E Form of Earnings Assignment
F Form of Insurances Assignment
G Form of Assignment and Assumption Agreement
H Form of Compliance Certificate
I Form of Drawdown Notice
J Form of Interest Notice
K Form of Comfort Letter
SENIOR SECURED TERM CREDIT FACILITY
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THIS SENIOR SECURED TERM CREDIT FACILITY AGREEMENT (this "Credit Facility
Agreement") is made as of the 10th day of March, 2005, by and among (1) VITSI
SHIPPING COMPANY LIMITED, a corporation organized and existing under the laws of
the Republic of Liberia, and PARNIS SHIPPING COMPANY LIMITED, a corporation
organized and existing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands
(the "Borrowers"), (2) the banks and financial institutions listed on Schedule
1, as lenders (together with any bank or financial institution which becomes a
Lender pursuant to Section 10, the "Lenders") and (3) DVB BANK AG, acting
through its New York Branch ("DVB"), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent") and as security trustee for the
Lenders (in such capacity, the "Security Trustee").
WITNESSETH THAT:
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WHEREAS, at the request of the Borrowers, the Administrative Agent has agreed to
serve in such capacity under the terms of this Credit Facility Agreement and the
Lenders have agreed to provide to the Borrowers a senior secured credit facility
for a term loan to be made available in two tranches in the lesser amount of US$
56,500,000 or 60% of the Fair Market Value of the Vessels, as defined below;
NOW, THEREFORE, in consideration of the premises set forth above, the covenants
and agreements hereinafter set forth, and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as set forth below:
1. DEFINITIONS
1.1 Specific Definitions. In this Credit Facility Agreement the words and
expressions specified below shall, except where the context otherwise requires,
have the meanings attributed to them below:
"Acceptable Accounting Firm" means Ernst & Young, or such other recognized
international accounting firm as shall be
approved by the Administrative Agent, such
approval not to be unreasonably withheld;
"Account Pledge" means the pledge agreement to be executed by the
Borrowers in favor of the Security Trustee in
respect of the Operating Account pursuant to
Section 4.1(g), substantially in the form set out
in Exhibit C;
"Accounting Period" means each consecutive period of three months
falling during the period (ending on the last day
in March, June, September and December of each
year) for which quarterly accounting information
is required to be provided to the Administrative
Agent hereunder;
"Adjusted Net Worth" means, measured at the end of an Accounting
Period, the amount of Total Assets less
Consolidated Debt as stated in then most recent
accounting information delivered to the
Administrative Agent hereunder;
"Administrative Agent" shall have the meaning ascribed thereto in the
preamble;
"Advance(s)" means any amount advanced to the Borrowers with
respect to the Facility or (as the context may
require) the aggregate amount of all such
Advances for the time being outstanding;
"Affiliate" means with respect to any Person, any other
Person directly or indirectly controlled by or
under common control with such Person. For the
purposes of this definition, "control"
(including, with correlative meanings, the terms
"controlled by" and "under common control with")
as applied to any Person means the possession
directly or indirectly of the power to direct or
cause the direction of the management and
policies of that Person whether through ownership
of voting securities or by contract or otherwise;
"Agents" means each of the Administrative Agent and the
Security Trustee;
"Applicable Rate" means any rate of interest applicable to the
Facility from time to time pursuant to Section
6.1;
"Assigned Moneys" means sums assigned to or received by the Agents
pursuant to any Security Document;
"Assignment and Assumption
Agreement(s)" means the Assignment and Assumption Agreement(s)
executed pursuant to Section 10 substantially in
the form set out in Exhibit G;
"Assignment Notices" means:
(i) notices with respect to the Earnings
Assignments substantially in the form set
out in Exhibit 1 thereto; and
(ii) notices with respect to the Insurances
Assignments substantially in the form set
out in Exhibit 3 thereto;
"Assignments" means the Earnings Assignments and the Insurances
Assignments;
"Banking Day(s)" means day(s) on which banks are open for the
transaction of business in London, England, New
York, New York, Amsterdam, The Netherlands, and
Curacao, Netherlands Antillies;
"Borrower(s)" shall have the meaning ascribed thereto in the
preamble;
"Change of Control" means (a) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act),
other than a member of the immediate family of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more
than 35% of the total voting power or ownership
interest of the Borrowers or (b) the Board of
Directors of the Borrowers ceases to consist of a
majority of the directors existing on the date
hereof or directors nominated by at least
two-thirds (2/3) of the then existing directors;
"Classification Society" means a member of the International Association
of Classification Societies with whom any of the
Vessels are entered and who conducted periodic
physical surveys and/or inspections of any of the
Vessels;
"CLO" shall have the meaning ascribed thereto in
Section 10;
"Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute and regulation
promulgated thereunder;
"Collateral" means all property or other assets, real or
personal, tangible or intangible, whether now
owned or hereafter acquired in which any Agent or
any Lender has been granted a security interest
pursuant to a Security Document;
"Comfort Letter" means a letter from the Guarantor addressed to
the Administrative Agent substantially in the
form of Exhibit K;
"Commitment(s)" means in relation to a Lender, the portion of the
Facility set out opposite its name in Schedule 1
or, as the case may be, as reduced by or set out
in any relevant Assignment and Assumption
Agreement, as such amount shall be reduced from
time to time pursuant to Section 5;
"Commitment Fee" shall have the meaning ascribed thereto in
Section 13.1;
"Compliance Certificate" means a certificate certifying the compliance by
each of the Borrowers and/or the Guarantor, as
the case may be, with all of its respective
covenants contained herein and showing the
calculations thereof in reasonable detail,
executed and delivered by the chief financial
officer of each of the Borrowers to the
Administrative Agent from time to time pursuant
to Section 9.1(d) in the form set out in Exhibit
H, or in such other form as the Administrative
Agent may agree;
"Consent and Agreement" means the consent and agreement relating to this
Credit Facility Agreement to be executed by the
Guarantor in the form attached hereto;
"Consolidated Debt" means, measured at the end of an Accounting
Period for the Guarantor and its subsidiaries on
a consolidated basis, the aggregate amount of
Debt due by the Security Parties (other than any
such Debt owing by one member of the Guarantor
Group to another member of the Guarantor Group)
as stated in the then most recent accounting
information delivered to the Administrative Agent
hereunder;
"Consolidated Financial
Indebtedness" means, measured at the end of each Accounting
Period, the aggregate amount of Financial
Indebtedness (including current maturities) of
the Guarantor Group on a consolidated basis
(other than any such Financial Indebtedness owing
by one member of the Guarantor Group to another
member of the Guarantor Group) as stated in the
then most recent accounting information delivered
to the Administrative Agent hereunder;
"Credit Facility Agreement" means this agreement, as the same shall be
amended, modified or supplemented from time to
time;
"Current Assets" means, measured at the end of each Accounting
Period, the aggregate of the cash and marketable
securities, trade and other receivables of the
Guarantor Group on a consolidated basis from
persons (other than a member of the Guarantor
Group) which can be realized within one year,
inventories and prepaid expenses which are to be
charged to income within one year less any
doubtful debts and any discounts or allowances
given as stated in the then most recent
accounting information delivered to the
Administrative Agent hereunder;
"Debt" means, in relation to any of the members of the
Guarantor Group (the "debtor"): (a) Financial
Indebtedness of the debtor; (b) liability for any
credit to the debtor from a supplier of goods or
services or under any installment purchase or
payment plan or similar arrangement; (c)
contingent liabilities of the debtor (including
without limitation any taxes or other payments
under dispute) which have been or, under GAAP,
should be recorded in the notes to the accounting
information; (d) deferred tax of the debtor; and
(e) liability under a guarantee, indemnity or
similar obligation entered into by the debtor in
respect of a liability of another person who is
not a Security Party which would fall within (a)
to (d) if the references to the debtor referred
to the other Person;
"Default Rate" shall have the meaning ascribed thereto in
Section 6.2;
"Delivery Advance" means with respect to each Tranche, the Advance
to be made to the Borrowers in respect of the
delivery of the Vessel to which such Tranche
relates to the relevant Borrower;
"Delivery Date" means with respect to each Vessel the date on
which Vessel is delivered to the Borrowers;
"DOC" means a document of compliance issued to an
Operator in accordance with rule 13 of the ISM
Code;
"Dollars" and the sign "$" means the legal currency, at any relevant time
hereunder, of the United States of America and,
in relation to all payments hereunder, in same
day funds settled through the New York Clearing
House Interbank Payments System (or such other
Dollar funds as may be determined by the
Administrative Agent to be customary for the
settlement in New York City of banking
transactions of the type herein involved);
"Drawdown Date(s)" means the dates, each being a Banking Day, upon
which the Borrowers have requested that an
Advance be made available to the Borrowers, and
such Advance is made, as provided in Section 3;
provided, however, that with respect to either
Tranche, no Drawdown Date shall fall later than
10 days from the Delivery Date of the Vessel to
which such Tranche relates, unless otherwise
agreed to by the Lenders; and provided, further,
that no Drawdown Date shall occur after April 30,
2005;
"Drawdown Notice" shall have the meaning ascribed thereto in
Section 3.2;
"DVB" shall have the meaning ascribed thereto in the
preamble;
"EBITDA" means, in respect of an Accounting Period, the
aggregate amount of consolidated pre-tax profits
of the Guarantor Group before extraordinary or
exceptional items, depreciation, interest,
rentals under finance leases and similar charges
payable as stated in the then most recent
accounting information;
"Earnings Assignment(s)" means the assignments in respect of the earnings
of each Vessel from any and all sources, to be
executed by the relevant Borrower in favor of the
Security Trustee pursuant to Section 4.2(b),
substantially in the form set out in Exhibit E;
"Environmental Affiliate(s)" means any person or entity, the liability of
which for Environmental Claims any Security Party
or Subsidiary of any Security Party may have
assumed by contract or operation of law;
"Environmental Approval(s)" shall have the meaning ascribed thereto in
Section 2.1(o);
"Environmental Claim(s)" shall have the meaning ascribed thereto in
Section 2.1(o);
"Environmental Law(s)" shall have the meaning ascribed thereto in
Section 2.1(o);
"Event(s) of Default" means any of the events set out in Section 8.1;
"Exchange Act" shall mean the Securities and Exchange Act of
1934, as amended;
"Facility" means the term loan facility to be made available
by the Lenders to the Borrowers hereunder in two
Tranches comprising multiple Advances pursuant to
Section 3; the lesser of aggregate principal
amount of Fifty Six Million Five Hundred Thousand
Dollars ($56,500,000) or sixty percent (60%) of
the Fair Market Value of the Vessels;
"Fair Market Value" means, in respect of either Vessel, the value of
a Vessel as determined by an appraisal by a
first-class, independent sale and purchase broker
acceptable to the Lenders;
"Final Availability Date" means the later of the Drawdown Date in respect
of Tranche 2 or April 30, 2005;
"Final Payment Date" means, that date which is seven years after the
Drawdown Date of Tranche 2, but not later than
April 30, 2012;
"Financial Indebtedness" means, in relation to any member of the Guarantor
Group (the "debtor"), a liability of the debtor:
(a) for principal, interest or any other sum
payable in respect of any moneys borrowed or
raised by the debtor; (b) under any loan stock,
bond, note or other security issued by the
debtor; (c) under any acceptance credit,
guarantee or letter of credit facility made
available to the debtor; (d) under a financial
lease, a deferred purchase consideration
arrangement (in each case, other than in respect
of assets or services obtained on normal
commercial terms in the ordinary course of
business) or any other agreement having the
commercial effect of a borrowing or raising of
money by the debtor; (e) under any foreign
exchange transaction, interest or currency swap
or any other kind of derivative transaction
entered into by the debtor or, if the agreement
under which any such transaction is entered into
requires netting of mutual liabilities, the
liability of the debtor for the net amount; or
(f) under a guarantee, indemnity or similar
obligation entered into by the debtor in respect
of a liability of another person which would fall
within (a) to (e) if the references to the debtor
referred to the other person;
"Fixed Charges" means, measured at the end of an Accounting
Period, the aggregate of Interest Expenses and
the portion of Consolidated Financial
Indebtedness (other than balloon repayments) in
respect of the Guarantor Group falling due during
that period, as stated in the then most recent
accounting information provided to the
Administrative Agent hereunder;
"GAAP" shall have the meaning ascribed thereto in
Section 1.3;
"Guarantor" means Top Tankers Inc., a company incorporated
under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands;
"Guarantor Group" means the Guarantor and each of its Subsidiaries;
"Guaranty" means the unconditional and irrevocable guaranty
to be executed by the Guarantor in respect of the
obligations of the Borrowers under and in
connection with this Credit Facility Agreement
and the Note in favor of the Security Trustee
pursuant to Section 4.l(c), substantially in the
set out in form of Exhibit B;
"Indemnitee" shall have the meaning ascribed thereto in
Section 17.7;
"Initial Advance" means the first Advance to be made under the
Facility;
"Initial Payment Date" means the date which is three (3) months after
the Drawdown Date of Tranche 2 of the Facility,
but no later than July 31, 2005;
"Insurances Assignment" means the assignments in respect of the
insurances over each of the Vessels to be
executed by the relevant Borrowers in favor of
the Security Trustee pursuant to Section 4.2(b),
substantially in the form set out in Exhibit F;
"Interest Expense" means, measured at the end of an Accounting
Period, the aggregate on a consolidated basis of
all interest incurred by the Guarantor Group
(excluding any amounts owing by one member of the
Guarantor Group to another member of the
Guarantor Group) and any net amounts payable
under interest rate hedge agreements, as stated
in the then most recent accounting information
provided to the Administrative Agent hereunder;
"Interest Notice" means a notice from the Borrowers to the
Administrative Agent specifying the duration of
any relevant Interest Period, each substantially
in the form set out in Exhibit J;
"Interest Payment Date" means each date on which accrued interest on the
Facility shall be payable pursuant to Section
6.4;
"Interest Period(s)" means period(s) of three (3), six (6) or twelve
(12) months as selected by the Borrowers, or as
otherwise agreed by the Lenders and each of the
Borrowers;
"Interest Rate Agreements" means any interest rate protection agreement,
interest rate future agreement, interest rate
option agreement, interest rate swap agreement,
interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other
similar agreement or arrangement entered into
between each of the Borrowers, the Guarantor or
any Subsidiary of the Borrowers with DVB, which
is designed to protect the Borrowers, the
Guarantor or any of the Borrowers' Subsidiaries
against fluctuations in interest rates applicable
under this Agreement, to or under which the
Borrowers, the Guarantor or any of the Borrowers'
Subsidiaries is a party or a beneficiary on the
date of this Agreement or becomes a party or a
beneficiary hereafter;
"ISM Code" means the International Safety Management Code
for the Safe Operating of Ships and for Pollution
Prevention constituted pursuant to Resolution
A.741(18) of the International Maritime
Organization 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 adopted by the International
Maritime Organization (as the same may be amended
from time to time);
"ISSC" means a valid and current International Ship
Security Certificate issued under the ISPS Code;
"Lender(s)" shall have the meaning ascribed thereto in the
preamble;
"LIBOR" means the rate (rounded upward to the nearest
1/16th of one percent) for deposits of Dollars
for a period equivalent to the relevant Interest
Period at or about 11:00 a.m. (London time) on
the second London Banking Day before the first
day of such period as displayed on Telerate page
3750 (British Bankers' Association Interest
Settlement Rates) (or such other page as may
replace such page 3750 on such system or on any
other system of the information vendor for the
time being designated by the British Bankers'
Association to calculate the BBA Interest
Settlement Rate (as defined in the British
Bankers' Association's Recommended Terms and
Conditions ("BBAIRS" terms) dated August 1985)),
provided that if on such date no such rate is so
displayed for the relevant Interest Period, LIBOR
for such period shall be the rate quoted to the
Administrative Agent by the Reference Bank at the
request of the Administrative Agent as the
offered rate for deposits of Dollars in an amount
approximately equal to the amount in relation to
which LIBOR is to be determined for a period
equivalent to the relevant Interest Period to
prime banks in the London Interbank Market at or
about 11:00 a.m. (London time) on the second
Banking Day before the first day of such period;
"Liquid Funds" means, measured at the end of an Accounting
Period: (a) cash in hand or held with banks or
other financial institutions of the Guarantor
and/or any other Security Party in Dollars or
another currency freely convertible into Dollars,
which is free of any security interest (other
than a permitted security interest and other than
ordinary bankers' liens which have not been
enforced or become capable of being enforced); or
(b) any other short-term financial investments
which is free of any Security Interest (other
than a permitted security interest), as stated in
the then most recent accounting information
delivered to the Administrative Agent hereunder;
"Majority Lenders" means, at any time, Lenders holding an aggregate
of more than 50% of the Advances then
outstanding;
"Margin" shall have the meaning ascribed thereto in
Section 6.1;
"Material Adverse Effect" shall mean a material adverse effect on (i) the
ability of either of the Borrowers to repay the
Advances or perform any of its obligations
hereunder or under the Note, (ii) the ability of
any Security Party to perform its obligations
under any Security Documents or (iii) the
business, property, assets, liabilities,
operations, condition (financial or otherwise) or
prospects of the Security Parties taken as a
whole;
"Mortgages" means the first preferred cross-collateralized
Liberian or ▇▇▇▇▇▇▇▇ Islands, as the case may be,
ship mortgages on each of the Vessels, to be
executed by the respective Borrowers as listed in
Schedule 2 in favor of the Security Trustee (as
trustee for the Lenders) pursuant to Section
4.3(b), substantially in the form set out in
Exhibit D;
"MTSA" means the Maritime and Transportation Security
Act, 2002, as amended, inter alia, by Public Law
107-295;
"Note" means the promissory note to be executed by the
Borrowers to the order of the Administrative
Agent pursuant to Section 4.1(b), to evidence the
Facility, substantially in the form set out in
Exhibit A;
"Operating Account" shall have the meaning ascribed thereto in
Section 4.1(g);
"Operator" means, in respect of any Vessel, the Person who
is concerned with the operation of such Vessel
and falls within the definition of "Company" set
out in rule 1.1.2 of the ISM Code;
"Payment Dates" means the Initial Payment Date and the dates
falling at three month intervals thereafter, the
last of which is the Final Payment Date;
"Person" means any individual, sole proprietorship,
corporation, partnership (general or limited),
limited liability company, business trust, bank,
trust company, joint venture, association, joint
stock company, trust or other unincorporated
organization, whether or not a legal entity, or
any government or agency or political subdivision
thereof;
"Proceeding" shall have the meaning ascribed thereto in
Section 8.1(i);
"Reference Banks" means DVB;
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from
time to time;
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from
time to time;
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from
time to time;
"Required Percentage" means one hundred and thirty percent (130%) of
the amount of the outstanding Facility and the
notional cost or actual cost (if any) as
determined by the Lender of terminating any
interest rate swap entered into by the Borrowers;
"Security Document(s)" means the Pledge Agreement, the Guaranty, the
Mortgages, the Assignments and any other
documents that may be executed as security for
the Facility and the Borrowers' obligations in
connection therewith;
"Security Party(ies)" means each of the Borrowers and the Guarantor;
"Security Trustee" shall have the meaning ascribed thereto in the
preamble;
"SMC" means the safety management certificate issued in
respect of each Vessel in accordance with rule 13
of the ISM code;
"Subsidiary(ies)" means, with respect to any Person, any business
entity of which more than 50% of the outstanding
voting stock or other equity interest is owned
directly or indirectly by such Person and/or one
or more other Subsidiaries of such Person;
"Tangible Fixed Assets" means, measured at the end of an Accounting
Period, the value (less depreciation computed in
accordance with GAAP) on a consolidated basis of
all tangible fixed assets of the Security Parties
as stated in the then most recent accounting
information delivered to the Administrative Agent
hereunder;
"Taxes" means any present or future income or other
taxes, levies, duties, charges, fees, deductions
or withholdings of any nature now or hereafter
imposed, levied, collected, withheld or assessed
by any taxing authority whatsoever, except for
taxes on or measured by the overall net income of
each Lender imposed by its jurisdiction of
incorporation or applicable lending office, the
United States of America, the State or City of
New York or any governmental subdivision or
taxing authority of any thereof or by any other
taxing authority having jurisdiction over such
Lender (unless such jurisdiction is asserted by
reason of the activities of any of the Security
Parties or any other member of the Guarantor
Group);
"Total Assets" means, measured at the end of an Accounting
Period, the aggregate of Current Assets and
Tangible Fixed Assets as stated in the then most
recent financial information delivered to the
Administrative Agent hereunder;
"Total Loss" shall have the meaning ascribed thereto in the
Mortgages;
"Tranche(s)" means any, all or any combination, as the context
requires, of Tranche 1 and Tranche 2;
"Tranche 1" means the portion of the Facility attributable to
the STOPLESS to be made available by the Lenders
pursuant to Section 3.1 hereof to the Borrowers
in one or more Advances;
"Tranche 2" means the portion of the Facility attributable to
the STAINLESS to be made available by the Lenders
pursuant to Section 3.1 hereof to the Borrowers
in one or more Advances;
"Vessel(s)" each of the Vessels listed in Schedule 2,
registered or to be registered in the name of the
relevant Borrower as set forth in such Schedule,
but excluding any Vessel for which a mandatory
prepayment is made pursuant to Section 5.3; and
1.2 Computation of Time Periods; Other Definitional Provisions. In this Credit
Facility Agreement, the Note and the Security Documents, in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding"; words importing either gender include the other gender; references
to "writing" include printing, typing, lithography and other means of
reproducing words in a tangible visible form; the words "including," "includes"
and "include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Credit Facility Agreement, the Note or such
Security Document, as applicable; references to agreements and other contractual
instruments (including this Credit Facility Agreement, the Note and the Security
Documents) shall be deemed to include all subsequent amendments, amendments and
restatements, supplements, extensions, replacements and other modifications to
such instruments (without, however, limiting any prohibition on any such
amendments, extensions and other modifications by the terms of this Credit
Facility Agreement, the Note or any Security Document); references to any matter
that is "approved" or requires "approval" of a party shall mean approval given
in the sole and absolute discretion of such party unless otherwise specified.
1.3 Accounting Terms. Unless otherwise specified herein, all accounting terms
used in this Credit Facility Agreement, the Note and in the Security Documents
shall be interpreted, and all financial statements and certificates and reports
as to financial matters required to be delivered to the Administrative Agent or
to the Lenders under this Credit Facility Agreement shall be prepared, in
accordance with generally accepted accounting principles for the United States
("GAAP") as from time to time in effect.
1.4 Certain Matters Regarding Materiality. To the extent that any
representation, warranty, covenant or other undertaking of either of the
Borrowers or the Guarantor in this Credit Facility Agreement is qualified by
reference to those which are not reasonably expected to result in a "Material
Adverse Effect" or language of similar import, no inference shall be drawn
therefrom that any Agent or Lender has knowledge or approves of any
noncompliance by either of the Borrowers or the Guarantor with any governmental
rule.
1.5 Forms of Documents. Except as otherwise expressly provided in this Credit
Facility Agreement, references to documents or certificates "substantially in
the form" of Exhibits to another document shall mean that such documents or
certificates are duly completed in the form of the related Exhibits with
substantive changes subject to the provisions of Section 17.6 of this Credit
Facility Agreement, as the case may be, or the correlative provisions of the
Security Documents.
2. REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties. In order to induce the Agents and the
Lenders to enter into this Credit Facility Agreement and to induce the Lenders
to make the Facility available, the Borrowers (and the Guarantor by its
execution of the Consent and Agreement annexed hereto) each hereby jointly and
severally represent and warrant to the Agents and the Lenders (which
representations and warranties shall survive the execution and delivery of this
Credit Facility Agreement and the Note and the drawdown of each Advance
hereunder) that:
(a) Due Organization and Power. each Security Party is duly formed and
is validly existing in good standing under the laws of its jurisdiction of
incorporation or formation, has full power to carry on its business as now being
conducted and to enter into and perform its obligations under this Credit
Facility Agreement, the Note and the Security Documents to which it is a party,
and has complied with all statutory, regulatory and other requirements relative
to such business and such agreements;
(b) Authorization and Consents. all necessary corporate action has
been taken to authorize, and all necessary consents and authorities have been
obtained and remain in full force and effect to permit, each Security Party to
enter into and perform its obligations under this Credit Facility Agreement, the
Note and the Security Documents, to which it is a party, and, in the case of
each of the Borrowers, to borrow, service and repay the Advances and, as of the
date of this Credit Facility Agreement, no further consents or authorities are
necessary for the service and repayment of the Advances or any part thereof;
(c) Binding Obligations. this Credit Facility Agreement, the Note and
the Security Documents constitute or will, when executed and delivered,
constitute the legal, valid and binding obligations of each Security Party as is
a party thereto enforceable against such Security Party in accordance with their
respective terms, except to the extent that such enforcement may be limited by
equitable principles, principles of public policy or applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting generally the
enforcement of creditors' rights;
(d) No Violation. the execution and delivery of, and the performance
of the provisions of, this Credit Facility Agreement, the Note and those of the
Security Documents to which it is to be a party by each Security Party do not
contravene any applicable law or regulation existing at the date hereof or any
contractual restriction binding on such Security Party or the certificate of
incorporation or by-laws (or equivalent instruments) thereof and that the
proceeds of the Advances shall be used by each of the Borrowers exclusively for
its own account or for the account of a Subsidiary or Affiliate of the
Borrowers;
(e) Filings; Stamp Taxes. other than the recording of the Mortgages
with the appropriate authorities for the United States, and the filing of UCC
Financing Statements in the District of Columbia in respect of the Assignments,
and the payment and filing or recording fees consequent thereto, it is not
necessary for the legality, validity, enforceability or admissibility into
evidence of this Credit Facility Agreement, the Note or the Security Documents
that any of them or any document relating thereto be registered, filed, recorded
or enrolled with any court or authority in any relevant jurisdiction or that any
stamp, registration or similar Taxes be paid on or in relation to this
Agreement, the Note or any of the Security Documents;
(f) Litigation. except as has been publicly disclosed by each of the
Borrowers, no action, suit or proceeding is pending or threatened against either
of the Borrowers or any Subsidiary before any court, board of arbitration or
administrative agency which is reasonably likely to result in a Material Adverse
Effect;
(g) No Default. neither the Borrowers, the Guarantor nor any of their
Subsidiaries is in default under any material agreement by which it is bound, or
is in default in respect of any financial commitment or obligation;
(h) Vessels. upon the date of the making of each Advance, each of the
Vessels :
(i) will be in the sole and absolute ownership of the respective
Borrower as set forth in Schedule 2 and duly registered in
such Borrower's name under the Liberian or ▇▇▇▇▇▇▇▇ Islands,
as the case may be, flag, unencumbered, save and except for
the Mortgage recorded against it and as permitted thereby;
(ii) will be classed in the highest classification and rating for
vessels of the same age and type with the respective
Classification Society as set forth in Schedule 2 without
any material outstanding recommendations;
(iii) will be operationally seaworthy and in every way fit for
its intended service; and
(iv) will be insured in accordance with the provisions of the
Mortgage recorded against it and the requirements thereof in
respect of such insurances will have been complied with;
(i) Insurance. each of the Security Parties has insured its properties
and assets against such risks and in such amounts as are customary for companies
engaged in similar businesses;
(j) Financial Information. on or prior to the date hereof, all
financial statements, information and other data furnished by each of the
Borrowers to the Administrative Agent are complete and correct, such financial
statements have been prepared in accordance with GAAP and accurately and fairly
present the financial condition of the parties covered thereby as of the
respective dates thereof and the results of the operations thereof for the
period or respective periods covered by such financial statements, and, since
the date of the Borrowers' financial statements most recently delivered to the
Administrative Agent, there has been no Material Adverse Effect as to any of
such parties and none thereof has any contingent obligations, liabilities for
taxes or other outstanding financial obligations, except as disclosed in such
statements, information and data;
(k) Tax Returns. each of the Borrowers and each of their Subsidiaries
have filed all tax returns required to be filed by them and have paid all taxes
payable by them which have become due, other than those not yet delinquent and
except for those taxes being contested in good faith and by appropriate
proceedings or other acts and for which adequate reserves shall have been set
aside on its books;
(l) Chief Executive Office. the Borrowers' chief executive office and
chief place of business and the office in which the records relating to the
earnings and other receivables of each Subsidiary are kept is located at 109-111
Messogion Avenue, Polita Center, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇;
(m) Foreign Trade Control Regulations. none of the transactions
contemplated herein will violate the provisions of any statute or regulation
enacted to prohibit or limit economic transactions with foreign Persons
including, without limitation, the Foreign Assets Control Regulations of the
United States of America (Title 31, Code of Federal Regulations, Chapter V, Part
500, as amended), any of the provisions of the Cuban Assets Control Regulations
of the United States of America (Title 31, Code of Federal Regulations, Chapter
V, Part 515, as amended), any of the provisions of the Iranian Transaction
Regulations of the United States of America (Title 31, Code of Federal
Regulations, Chapter V, Part 560, as amended), any of the provisions of the
Iraqi Sanctions Regulations (Title 31, Code of Federal Regulations, Chapter V,
Part 575, as amended) or any of the provisions of the Regulations of the United
States of America Governing Transactions in Foreign Shipping of Merchandise
(Title 31, Code of Federal Regulations, Chapter V, Part 505, as amended);
(n) Equity Ownership. each of the Borrowers is a wholly owned
subsidiary of the Guarantor;
(o) Environmental Matters and Claims. (a) except as heretofore
disclosed in writing to the Administrative Agent and the Lenders (i) each of the
Borrowers, each of their Subsidiaries and their Affiliates will, when required
to operate their business as then being conducted, be in compliance with all
applicable United States federal and state, local, foreign and international
laws, regulations, conventions and agreements relating to pollution prevention
or protection of human health or the environment (including, without limitation,
ambient air, surface water, ground water, navigable waters, waters of the
contiguous zone, ocean waters and international waters), including, without
limitation, laws, regulations, conventions and agreements relating to (1)
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous materials, oil, hazardous
substances, petroleum and petroleum products and by-products ("Materials of
Environmental Concern"), or (2) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern ("Environmental Laws"); (ii) each of the Borrowers, each
of its Subsidiaries and their Affiliates will, when required, have all permits,
licenses, approvals, rulings, variances, exemptions, clearances, consents or
other authorizations required under applicable Environmental Laws
("Environmental Approvals") and will, when required, be in compliance with all
Environmental Approvals required to operate their business as then being
conducted; (iii) none of the Borrowers, any Subsidiary nor any Affiliate thereof
has received any notice of any claim, action, cause of action, investigation or
demand by any person, entity, enterprise or government, or any political
subdivision, intergovernmental body or agency, department or instrumentality
thereof, alleging potential liability for, or a requirement to incur, material
investigator costs, cleanup costs, response and/or remedial costs (whether
incurred by a governmental entity or otherwise), natural resources damages,
property damages, personal injuries, attorneys' fees and expenses, or fines or
penalties, in each case arising out of, based on or resulting from (1) the
presence, or release or threat of release into the environment, of any Materials
of Environmental Concern at any location, whether or not owned by such person,
or (2) circumstances forming the basis of any violation, or alleged violation,
of any Environmental Law or Environmental Approval ("Environmental Claim")
(other than Environmental Claims that have been fully and finally adjudicated or
otherwise determined and all fines, penalties and other costs, if any, payable
by the Security Parties in respect thereof have been paid in full or which are
fully covered by insurance (including permitted deductibles)); and (iv) there
are no circumstances that may prevent or interfere with such full compliance in
the future; and (b) except as heretofore disclosed in writing to the
Administrative Agent there is no Environmental Claim pending or threatened
against either of the Borrowers, any Subsidiary or any Affiliate thereof and
there are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission,
discharge or disposal of any Materials of Environmental Concern, that could form
the basis of any Environmental Claim against such persons the adverse
disposition of which may result in a Material Adverse Effect;
(p) Compliance with ISM Code, the ISPS Code and the MTSA. each Vessel
complies and each Operator complies with the requirements of the ISM Code, the
ISPS Code and the MTSA including (but not limited to) the maintenance and
renewal of valid certificates pursuant thereto;
(q) No Threatened Withdrawal of DOC, ISSC or SMC. there is no actual
or, to the best of the Borrowers' knowledge, threatened withdrawal of any
Operator's DOC or any Vessel's ISSC or SMC or other certification or
documentation related to the ISM Code or otherwise required for the operation of
such vessels in respect of any of the Vessels;
(r) Liens. other than as permitted hereby, there are no liens of any
kind on any property owned by either of the Borrowers or any Subsidiary of the
Borrowers;
(s) Debt. other than as permitted hereby, neither of the Borrowers has
Debt;
(t) No Proceedings to Dissolve. there are no proceedings or actions
pending or contemplated by any Security Party, or, contemplated by any third
party, to dissolve or terminate any Security Party;
(u) Solvency. in the case of each of the Security Parties, (a) the sum
of its assets, at a fair valuation, does and will exceed its liabilities,
including, to the extent they are reportable as such in accordance with GAAP,
contingent liabilities, (b) the present fair market salable value of its assets
is not and shall not be less than the amount that will be required to pay its
probable liability on its then existing debts, including, to the extent they are
reportable as such in accordance with GAAP, contingent liabilities, as they
mature, (c) it does not and will not have unreasonably small working capital
with which to continue its business and (d) it has not incurred, does not intend
to incur and does not believe it will incur, debts beyond its ability to pay
such debts as they mature;
(v) Compliance with Laws. each of the Security Parties is in
compliance with all applicable laws except where the failure to comply would not
alone or in the aggregate result in a Material Adverse Effect; and
(w) Survival. all representations, covenants and warranties made
herein and in any certificate or other document delivered pursuant hereto or in
connection herewith shall survive the making of the Advances and the issuance of
the Note.
3. THE ADVANCES
3.1 (a) Purposes. The Lenders shall make the Advances available to the Borrowers
for the purpose of financing the acquisition of the Vessels.
(b) Making of the Advances.
(i) Each of the Lenders, relying upon each of the
representations and warranties set out in Section 2, hereby severally and not
jointly agrees with the Borrowers that, subject to and upon the terms of this
Credit Facility Agreement, it will, not later than 11:00 A.M. (New York City
time) on the Drawdown Date of each Advance (except as provided in subsection
(ii) of this Section), make its portion of the relevant Advance, in Federal or
other funds immediately available in New York City, to the Administrative Agent
at its address and to such account as set forth on Schedule 1 or to such account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. Unless the Administrative Agent determines that any
applicable condition specified in Section 4.1, 4.2, 4.3 or 4.4 has not been
satisfied, the Administrative Agent will make the funds so received from the
Lenders available to the Borrowers at the aforesaid address, subject to the
receipt of the funds by the Administrative Agent as provided in the immediately
preceding sentence, not later than 10:00A.M. (New York City time) on the date of
such Advance, and in any event as soon as practicable after receipt. All
Advances, subject to the other terms and conditions hereof, shall be in a
minimum amount of One Million Dollars ($1,000,000) and in multiples of Two
Hundred Fifty Thousand Dollars ($250,000). The Facility shall be repayable as
provided in Section 5. The Lenders' obligation to make any Advance hereunder
shall terminate if the Vessels are not delivered to the Borrowers by April 30,
2005.
(ii) Unless the Administrative Agent shall have received
notice from a Lender prior to the Drawdown Date of any Advance that such Lender
will not make available to the Administrative Agent such Lender's share of such
Advance, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the date of such Advance in
accordance with this Section 3.1 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrowers on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrowers (but without duplication and not if such Lender is an affiliate of the
Administrative Agent) severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrowers until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrowers, a rate per annum equal to the higher of (y) the LIBOR rate for
overnight or weekend deposits plus the Margin and (z) the interest rate
applicable thereto pursuant to Section 6.1 and (ii) in the case of such Lender,
the LIBOR rate for overnight or weekend deposits. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance included in such Advance for purposes of this
Credit Facility Agreement as of the date such Advance was made. Nothing in this
subsection (b)(ii) shall be deemed to relieve any Lender of its obligation to
make Advances to the extent provided in this Credit Facility Agreement. In the
event that the Borrowers are required to repay an Advance to the Administrative
Agent pursuant to this Section 3.1(b)(ii), as between the Borrowers and the
defaulting Lender, the liability for any breakfunding costs as described in
Section 4.5 shall be borne by the defaulting Lender. If the defaulting Lender
has not paid any such breakage costs upon demand by the Administrative Agent
therefor, the Borrowers shall pay such breakage costs upon demand by the
Administrative Agent and the Borrowers shall be entitled to recover any such
payment for breakfunding costs made by the Borrowers from the defaulting Lender.
3.2 Drawdown Notice. The Borrowers shall, at least three (3) Banking Days before
a Drawdown Date, serve a notice (a "Drawdown Notice"), substantially in the form
of Exhibit I, on the Administrative Agent, which notice shall (a) be in writing
addressed to the Administrative Agent, (b) be effective on receipt by the
Administrative Agent, (c) specify the amount of such Advance to be drawn, (d)
specify the Banking Day on which such Advance is to be drawn and, subject to the
terms of Section 6.3 hereof, the Interest Period, (e) specify the disbursement
instructions and (f) be irrevocable. The Administrative Agent shall deliver the
Drawdown Notice to Lenders as soon as practicable after its receipt thereof.
3.3 Effect of Drawdown Notice. Such Drawdown Notice shall be deemed to
constitute a warranty by the Borrowers (a) that the representations and
warranties stated in Section 2 (updated mutatis mutandis) are true and correct
on and as of the date of such Drawdown Notice and will be true and correct on
and as of the relevant Drawdown Date as if made on such date, and (b) that no
Event of Default nor any event which with the giving of notice or lapse of time
or both would constitute an Event of Default has occurred and is continuing.
3.4 Notation of Advances. Each Advance made by the Lenders to the Borrowers may
be evidenced by a notation of the same made by the Administrative Agent on the
grid attached to the Note, which notation, absent manifest error, shall be prima
facie evidence of the amount of the relevant Advance.
4. CONDITIONS
4.1 Conditions Precedent to the Initial Advance. The obligation of the Lenders
to make the Initial Advance available to the Borrowers under this Credit
Facility Agreement shall be expressly subject to the following conditions
precedent:
(a) Corporate Authority. the Administrative Agent shall have received
the following documents in form and substance satisfactory to the Administrative
Agent:
(i) copies, certified as true and complete by an officer of each
of the Borrowers, of the resolutions of the board of
directors of the respective Borrowers evidencing approval of
this Credit Facility Agreement and the Note and authorizing
an appropriate officer or officers or attorney-in-fact or
attorneys-in-fact to execute the same on its behalf, or
other evidence of such approvals and authorizations;
(ii) copies, certified as true and complete by an officer of each
the Guarantor, of the resolutions of the board of directors
evidencing approval of this Credit Facility, the Guaranty
and those Security Documents to which it is to be a party
and authorizing an appropriate officer or officers or
attorney-in-fact or attorneys-in-fact to execute the same on
its behalf, or other evidence of such approvals and
authorizations;
(iii) copies, certified as true and complete by an officer of
each of the Borrowers, of all documents evidencing any other
necessary action (including actions by such parties thereto
other than the Borrowers as may be required by the
Administrative Agent), approvals or consents with respect to
this Credit Facility Agreement, the Note and the Security
Documents;
(iv) copies, certified as true and complete by an officer of the
respective Security Party, of the certificate of
incorporation and by-laws, certificate of formation and
operating agreement, or equivalent instruments thereof;
(v) certificate of an authorized officer of the Guarantor
certifying that it legally and beneficially owns, directly
or indirectly, all of the issued and outstanding capital
stock, or limited liability company membership interests, as
the case may be, of each of the Borrowers and that such
capital stock or membership interests are free and clear of
any liens, claims, pledges or other encumbrances whatsoever;
(vi) certificate of an authorized officer of each Security Party
(other than the Borrowers) certifying as to the record
ownership of all of its issued and outstanding capital
stock, or limited liability company membership interests, as
the case may be; and
(vii) certificates of the jurisdiction of incorporation or
formation, as the case may be, of each Security Party as to
the good standing thereof;
(b) The Credit Facility Agreement and the Note. each of the Borrowers
shall have duly executed and delivered to the Administrative Agent this Credit
Facility Agreement and the Note;
(c) Guarantor Documents. the Guarantor shall have duly executed and
delivered the Guaranty, its Consent and Agreement hereto and the Comfort Letter
to the Administrative Agent.
(d) Guarantor Solvency. the Administrative Agent shall have received a
certificate of an officer of the Guarantor confirming the representations and
warranties with respect to solvency set forth in the Guaranty and containing
conclusions as to the solvency of the Guarantor;
(e) Environmental Claims. the Administrative Agent shall be satisfied
that neither of the Borrowers nor any of their Subsidiaries or their Affiliates
is subject to any Environmental Claim;
(f) Fees. the Administrative Agent shall have received payment in full
of all fees and expenses then due to the Agents and/or the Lenders under Section
13;
(g) Accounts. each of the Borrowers shall have established a master
operating account into which Assigned Moneys are to be paid (the "Operating
Account") with the Administrative Agent, or with another financial institution
provided that if such account is established with a financial institution other
than the Administrative Agent, each of the Borrowers shall have pledged its
interest in such account to the Administrative Agent pursuant to an Account
Pledge, and the Guarantor shall have agreed that such Assigned Moneys be paid
into the Operating Account(s);
(h) Compliance Certificate. the Administrative Agent having received a
Compliance Certificate with respect to the most recently ended fiscal quarter;
(i) Vessel Appraisal. the Administrative Agent having received an
appraisal respect to the Fair Market Value of each of the Vessels;
(j) Money Laundering Due Diligence. the Administrative Agent having
received such documentation and other evidence as is reasonably requested by the
Administrative Agent in order for each of the Lenders to carry out and be
satisfied with the results of all necessary "know your client" or other checks
which is required to carry out in relation to the transactions contemplated by
this Credit Facility Agreement, the Notes and the Security Documents;
(k) Legal Opinions. the Administrative Agent, on behalf of the Agents
and the Lenders, shall have received legal opinions addressed to the
Administrative Agent from (i) ▇.▇. ▇▇▇▇▇▇▇▇ & Associates, counsel for the
Security Parties and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Agents and
Lenders, in each case in such form as the Administrative Agent may require, as
well as such other legal opinions as the Administrative Agent shall have
required as to all or any matters under the laws of the United States of America
and the State of New York covering the representations and conditions which are
the subjects of Section 2 and this Section 4.1.
4.2 Conditions Precedent re Delivery Advances. The obligation of the Lenders to
make each Advance available to the Borrowers under this Agreement shall be
expressly and separately subject to the following further conditions precedent
on the relevant Drawdown Date:
(a) The Vessels. the Administrative Agent shall have received evidence
satisfactory to it that the relevant Vessel:
(i) has been delivered to the relevant Borrower;
(ii) is in the sole and absolute ownership of the relevant
Borrower and duly registered in such Borrower's name under
the ▇▇▇▇▇▇▇▇ Islands or Liberian flag, respectively,
unencumbered, save and except for the Mortgage, recorded
against it and as otherwise permitted thereby;
(iii) is classed in the highest classification and rating for
vessels of the same age and type with the respective
classification society as set forth in Schedule 2 without
any material outstanding recommendations;
(iv) is operationally seaworthy and in every way fit for its
intended service;
(v) is insured in accordance with the provisions of the Mortgage
recorded against it and the requirements thereof in respect
of such insurance have been complied with;
(b) Vessel Documents. Upon the delivery of its respective Vessel, each
Borrower shall have duly executed and delivered to the Administrative Agent:
(i) the Mortgage over its Vessel;
(ii) an Insurances Assignment with respect to its Vessel;
(iii) an Earnings Assignment with respect to its Vessel;
(iv) the Assignment Notices with respect to the above-indicated
Insurances Assignments and Earnings Assignments;
(v) Uniform Commercial Code Financing Statements for filing with
the District of Columbia and in such other jurisdictions as
the Administrative Agent may reasonably require;
(c) Vessel Liens. the Administrative Agent shall have received
evidence satisfactory to it and to its legal advisor that, save for the liens
created by the Mortgage and the Assignments relating to each Vessel, there are
no liens, charges or encumbrances of any kind whatsoever on such Vessel or on
its earnings except as permitted hereby or by any of the Security Documents;
(d) ISM DOC. the Administrative Agent shall have received a copy of
the DOC for the Vessel to which such Delivery Advance relates;
(e) Legal Opinions. the Administrative Agent, on behalf of the Agents
and the Lenders, shall have received legal opinions addressed to the
Administrative Agent from (i) ▇.▇. ▇▇▇▇▇▇▇▇ & Associates, counsel for the
Security Parties, and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Agents
and Lenders, in each case in such form as the Administrative Agent may require,
as well as such other legal opinions as the Administrative Agent shall have
required as to all or any matters under the laws of the United States of America
and the State of New covering the representations and conditions which are the
subjects of Sections 2 and this Section 4.2.
4.3 Further Conditions Precedent. The obligation of the Lenders to make any
Advance available to the Borrowers under this Credit Facility Agreement shall be
expressly and separately subject to the following further conditions precedent
on the relevant Drawdown Date:
(a) Drawdown Notice. the Administrative Agent having received a
Drawdown Notice in accordance with the terms of Section 3.2;
(b) Representations and Warranties. the representations stated in
Section 2 (updated mutatis mutandis to such date) being true and correct as if
made on and as of that date;
(c) No Event of Default. no Event of Default having occurred and being
continuing and no event having occurred and being continuing which, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default;
(d) No Change in Laws. the Administrative Agent being satisfied that
no change in any applicable laws, regulations, rules or in the interpretation
thereof shall have occurred which make it unlawful for any Security Party to
make any payment as required under the terms of this Credit Facility Agreement,
the Note, the Security Documents or any of them; and
(e) No Material Adverse Effect. there having been no Material Adverse
Effect since the date hereof.
4.4 Breakfunding Costs. In the event that, on the date specified for the making
of an Advance in any Drawdown Notice, the Lenders shall not be obliged under
this Credit Facility Agreement to make such Advance available, the Borrowers
shall indemnify and hold the Lenders fully harmless against any losses which the
Lenders (or any thereof) may sustain as a result of borrowing or agreeing to
borrow funds to meet the drawdown requirement of such Drawdown Notice and the
certificate of the relevant Lender or Lenders shall, absent manifest error, be
conclusive and binding on the Borrowers as to the extent of any such losses.
4.5 Satisfaction after Drawdown. Without prejudice to any of the other terms and
conditions of this Credit Facility Agreement, in the event the Lenders, in their
sole discretion, make any Advance prior to the satisfaction of all or any of the
conditions referred to in Sections 4.1, 4.2 or 4.3, the Borrowers hereby
covenant and undertake to satisfy or procure the satisfaction of such condition
or conditions within fourteen (14) days after the relevant Drawdown Date (or
such longer period as the Lenders, in their sole discretion, may agree).
5. REPAYMENT AND PREPAYMENT
5.1 Repayment. Subject to the provisions of this Section 5 regarding prepayments
and the application thereof, the Borrowers shall, on the Payment Dates, repay
the principal amount of that portion of the Facility attributable to each
Tranche in twenty-eight (28) consecutive installments payable quarterly in
arrears commencing on the date occurring three (3) months after the Drawdown
Date for Tranche 2, but no later than July 31, 2005; the amount of each
installment shall be determined as follows (reduced pro rata in the event less
than the maximum amount of the Facility is drawn down):
(a) the first eight (8) installments shall each be in the amount of
Two Million One Hundred Eighteen Thousand Seven Hundred Fifty Dollars
($2,118,750);
(b) the ninth through twelfth installments shall each be in the amount
of One Million Six Hundred Ninety Five Thousand Dollars ($1,695,000);
(c) the thirteenth through twenty-eighth installments shall each be in
the amount of One Million Four Hundred Twelve Thousand Five Hundred Dollars
($1,412,500); and
(d) a balloon installment of Ten Million One Hundred Seventy Thousand
Dollars ($10,170,000) shall be payable together with the twenty-eighth
installment on the Final Payment Date.
5.2 Voluntary Prepayment; No Re-Borrowing. The Borrowers may prepay, upon ten
(10) Banking Days written notice, any outstanding Advance or any portion
thereof, without penalty, provided that if such prepayment is made on a day
other than the last day of the Interest Period of such Advance such prepayment
shall be made together with the costs and expenses provided for in Section 5.4.
Each prepayment shall be in a minimum amount of Five Hundred Thousand Dollars
($500,000) plus any Five Hundred Thousand Dollar ($500,000) multiple thereof or
the full amount of the then outstanding Advances. Prepayments shall be applied
to the remaining payments on a pro-rata basis and will not be available for
re-borrowing.
5.3 Mandatory Prepayment:Sale or Loss of Vessel . On (i) any sale of a Vessel or
(ii) the earlier of (x) one hundred eighty (180) days after the Total Loss of a
Vessel or (y) the date on which the insurance proceeds in respect of such loss
are received by the Borrowers or the Administrative Agent as assignee thereof or
(iii) either of the Borrowers is released from its obligations hereunder, the
Advance attributable to such Vessel shall be prepaid and the security interest
granted by the relevant Borrower shall be released, and any surplus shall be
released to the Borrower.
5.4 Interest and Costs with Prepayments/Application of Prepayments. Any
prepayment of the Advances made hereunder (including, without limitation, those
made pursuant to Sections 5 and 9.4) shall be subject to the condition that on
the date of prepayment all accrued interest to the date of such prepayment shall
be paid in full with respect to the Advances or portions thereof being prepaid,
together with any and all costs or expenses incurred by any Lender in connection
with any breaking of funding (as certified by such Lender, which certification
shall, absent any manifest error, be conclusive and binding on the Borrowers).
All prepayments of the Facility under Section 5.2 shall be applied towards the
installments of the Facility pro rata.
6. INTEREST AND RATE
6.1 Applicable Rate. Each Advance shall bear interest at the Applicable Rate,
which shall be the rate per annum which is equal to the aggregate of (a) LIBOR
for the relevant Interest Period, plus (b) one and twenty five hundredths of one
percent (1.25%) per annum (the "Margin"). The Applicable Rate shall be
determined by the Administrative Agent two (2) Banking Days prior to the first
(1st) day of the relevant Interest Period and the Administrative Agent shall
promptly notify the Borrowers in writing of the Applicable Rate as and when
determined. Each such determination, absent manifest error, shall be conclusive
and binding upon the Borrowers.
6.2 Default Rate. Any amounts due under this Credit Facility Agreement, not paid
when due, whether by acceleration or otherwise, shall bear interest thereafter
from the due date thereof until the date of payment at a rate per annum equal to
(i) the Applicable Rate, plus two percent (2%) per annum (the "Default Rate").
In addition, following the occurrence of any Event of Default and until such
Event of Default is cured to the satisfaction of the Majority Lenders, the
Facility shall bear interest at the Default Rate.
6.3 Interest Periods. The Borrowers shall give the Administrative Agent an
Interest Notice specifying the Interest Period selected for the next subsequent
Interest Period at least three (3) Banking Days prior to the end of any then
existing Interest Period, which notice the Administrative Agent agrees to
forward on to all Lenders on a same day basis or as soon as practicable. If at
the end of any then existing Interest Period the Borrowers fail to give an
Interest Notice, the relevant Interest Period shall be three (3) months. The
Borrowers' right to select an Interest Period shall be subject to the
restriction that no selection of an Interest Period shall be effective unless
each Lender is satisfied that the necessary funds will be available to such
Lender for such period and that no Event of Default or event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
shall have occurred and be continuing. Interest Periods for each Tranche
hereunder shall be consolidated as soon as practicable, but in no event later
than thirty (30) days after the delivery of the Vessel to which Tranches
relates. The Borrowers shall reimburse the Lenders for any and all costs or
expenses incurred by the Lenders in connection with any breaking of funding (as
certified by each Lender, which certification, absent manifest error, shall be
conclusive and binding in the Borrowers) as a consequence of such consolidation.
6.4 Interest Payments. Accrued interest on the Facility shall be payable in
arrears on the last day of each Interest Period, except that if the Borrowers
shall select an Interest Period in excess of three (3) months, accrued interest
shall be payable during such Interest Period on each three (3) month anniversary
of the commencement of such Interest Period and upon the end of such Interest
Period.
7. PAYMENTS
7.1 Place of Payments, No Set Off. All payments to be made hereunder by the
Borrowers shall be made to the Administrative Agent, not later than 10 a.m. New
York time (any payment received after 10 a.m. New York time shall be deemed to
have been paid on the next Banking Day) on the due date of such payment, at its
office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
or to such other office of the Administrative Agent as the Administrative Agent
may direct, without set-off or counterclaim and free from, clear of, and without
deduction or withholding for, any Taxes, provided, however, that if the
Borrowers shall at any time be compelled by law to withhold or deduct any Taxes
from any amounts payable to the Lenders hereunder, then the Borrowers shall pay
such additional amounts in Dollars as may be necessary in order that the net
amounts received after withholding or deduction shall equal the amounts which
would have been received if such withholding or deduction were not required and,
in the event any withholding or deduction is made, whether for Taxes or
otherwise, the Borrowers shall promptly send to the Administrative Agent such
documentary evidence with respect to such withholding or deduction as may be
required from time to time by the Lenders.
7.2 Tax Credits. If any Lender obtains the benefit of a credit against the
liability thereof for federal income taxes imposed by any taxing authority for
all or part of the Taxes as to which the Borrowers has paid additional amounts
as aforesaid in Section 7.1, then such Lender shall pay an amount to the
Borrowers which that Lender determines will leave it (after such payment) in the
same position as it would have been had the Tax payment not been made by the
Borrowers. Each Lender agrees that in the event that Taxes are imposed on
account of the situs of its loans hereunder, such Lender, upon acquiring
knowledge of such event, shall, if commercially reasonable and if, in the
opinion of that Lender, is not prejudicial to it, shift such loans on its books
to another office of such Lender so as to avoid the imposition of such Taxes.
Nothing contained in this clause shall in any way prejudice the right of the
Lenders to arrange their tax affairs in such way as they, in their sole
discretion, deem appropriate. In particular, no Lender shall be required to
obtain such tax credit, if this interferes with the way such Lender normally
deals with its tax affairs.
7.3 Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim or pursuant to a
secured claim under Section 506 of the Federal Bankruptcy Code or other security
or interest arising from, or in lieu of, such secured claim, exercised or
received by such Lender under any applicable bankruptcy, insolvency or other
similar law or otherwise, or by any other means, obtain payment (voluntary or
involuntary) in respect of any Advance or Advances as a result of which its
funded Commitment shall be proportionately less than the funded Commitment of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the funded Commitment of such other
Lender so that the aggregate funded Commitment of each Lender shall be in the
same proportion to the aggregate funded Commitments then outstanding as its
funded Commitment prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all funded
Commitments outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 7.3 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. Any Lender
holding a participation in a funded Commitment deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing to such Lender by reason thereof as fully as
if such Lender had made an Advance in the amount of such participation. The
Borrowers expressly consents to the foregoing arrangement.
7.4 Computations; Banking Days. (a) (a) All computations of interest and fees
shall be made by the Administrative Agent or the Lenders, as the case may be, on
the basis of a 360-day year, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which interest or fees are payable. Each determination by the Administrative
Agent or the Lenders of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error;
(b) Whenever any payment hereunder or under the Note shall be stated
to be due on a day other than a Banking Day, such payment shall be due and
payable on the next succeeding Banking day unless the next succeeding Banking
Day falls in the following calendar month, in which case it shall be payable on
the immediately preceding Banking Day.
8. EVENTS OF DEFAULT
8.1 Events of Default. The occurrence of any of the following events shall be an
Event of Default:
(a) Non-Payment of Principal. any payment of principal is not paid
when due; or
(b) Non-Payment of Interest or Other Amounts. any interest or any
other amount becoming payable to the Administrative Agent or any Lender under
this Credit Facility Agreement, under the Note or under any of the Security
Documents is not paid within three (3) Banking Days of the due date or date of
demand (as the case may be); or
(c) Representations. any representation, warranty or other statement
made by the Borrowers in this Credit Facility Agreement or by any Security Party
in any of the Security Documents or in any other instrument, document or other
agreement delivered in connection herewith or therewith proves to have been
untrue or misleading in any material respect as at the date as of which made or
confirmed; or
(d) Impossibility; Illegality. it becomes impossible or unlawful for
either of the Borrowers or the Guarantor to fulfill any of its covenants or
obligations hereunder, under the Note or under any of the Security Documents or
for any of the Lenders to exercise any of the rights vested in any of them
hereunder, under the Note or under any of the Security Documents; or
(e) Mortgage. there is an event of default under any Mortgage; or
(f) Covenants. any Security Party (i) defaults in the due and punctual
observance or performance of Sections 9.1(c), 9.1(h), 9.1(j), 9.1(k), 9.1(m),
9.1(n), 9.2(h) or 9.2(k) and such default continued unremedied for a period of
sixty (60) days or (ii) defaults under any other term, covenant or agreement
contained in this Credit Facility Agreement, in the Note, in any of the Security
Documents or in any other instrument, document or other agreement delivered in
connection herewith or therewith, or there occurs any other event which
constitutes a default under this Credit Facility Agreement, under the Note or
under any of the Security Documents, in each case other than an Event of Default
referred to elsewhere in this Section 8.1; or
(g) Debt. any Security Party shall default in the payment when due of
any Debt or of any other debt, in either case, in the outstanding principal
amount equal to or exceeding Five Hundred Thousand Dollars ($500,000) or such
debt or debt is, or by reason of such default is subject to being, accelerated
or any party becomes entitled to enforce the security for any such Debt or debt
and such party shall take steps to enforce the same, unless such default or
enforcement is being contested in good faith and by appropriate proceedings or
other acts and the Security Party, Subsidiary or Affiliate of either of the
Borrowers, as the case may be, shall set aside on its books adequate reserves
with respect thereto; or
(h) Ownership of Borrowers. the Guarantor shall cease to own directly
or indirectly, one hundred percent (100%) of either of the Borrowers; or
(i) Bankruptcy. the Borrowers, any Security Party, any Subsidiary or
any Affiliate of the Borrowers commences any proceeding under any
reorganization, arrangement or readjustment of debt, dissolution, winding up,
adjustment, composition, bankruptcy or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect (a "Proceeding"), or there is
commenced against any thereof any Proceeding and such Proceeding remains
undismissed or unstayed for a period of thirty (30) days or any receiver,
trustee, liquidator or sequestrator of, or for, any thereof or any substantial
portion of the property of any thereof is appointed and is not discharged within
a period of thirty (30) days or any thereof by any act indicates consent to or
approval of or acquiescence in any Proceeding or the appointment of any
receiver, trustee, liquidator or sequestrator of, or for, itself or of, or for,
any substantial portion of its property; or
(j) Termination of Operations; Sale of Assets. except as expressly
permitted under this Credit Facility Agreement, any Security Party ceases its
operations or sells or otherwise disposes of all or substantially all of its
assets or all or substantially all of the assets of any Security Party are
seized or otherwise appropriated; or
(k) Judgments. any judgment or order is made, the effect whereof would
be to render ineffective or invalid this Credit Facility Agreement, the Note or
any of the Security Documents or any material provision thereof, or the
Borrowers or any Security Party asserts that any such agreement or provision
thereof is invalid; or
(l) Inability to Pay Debts. the Borrowers, any Security Party, any
Subsidiary or any Affiliate of the Borrowers is unable to pay or admits its
inability to pay its debts as they fall due or a moratorium shall be declared in
respect of any material indebtedness of the Borrowers or any Affiliate of the
Borrowers; or
(m) Change in Financial Position. any change in the financial position
of the Borrowers or any Affiliate of the Borrowers which, in the opinion of the
Majority Lenders, shall have a Material Adverse Effect; or
(n) Change in Control. a Change of Control shall occur with respect to
the Guarantor ; or
(o) Cross-Default. the Borrowers, any Security Party, any Subsidiary
or any Affiliate of the Borrowers defaults under any material contract or
material agreement to which it is a party or by which it is bound; or
Upon and during the continuance of any Event of Default, the Lenders' obligation
to make any Advance available shall cease and the Administrative Agent may, and
on the instructions of the Majority Lenders shall, by notice to the Borrowers,
declare the entire unpaid balance of the then outstanding Advances, accrued
interest and any other sums payable by the Borrowers hereunder or under the Note
due and payable, whereupon the same shall forthwith be due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived; provided that upon the happening of an event specified in
subsections (i) or (l) of this Section 8.1 with respect to the Borrowers, the
Note shall be immediately due and payable without declaration or other notice to
the Borrowers. In such event, the Lenders may proceed to protect and enforce
their rights by action at law, suit in equity or in admiralty or other
appropriate proceeding, whether for specific performance of any covenant
contained in this Credit Facility Agreement, in the Note or in any Security
Document, or in aid of the exercise of any power granted herein or therein, or
the Lenders may proceed to enforce the payment of the Note or to enforce any
other legal or equitable right of the Lenders, or proceed to take any action
authorized or permitted under the terms of any Security Document or by
applicable law for the collection of all sums due, or so declared due, on the
Note. Without limiting the foregoing, the Borrowers agree that during the
continuance of any Event of Default each of the Lenders shall have the right to
appropriate and hold or apply (directly, by way of set-off or otherwise) to the
payment of the obligations of the Borrowers to the Lenders hereunder and/or
under the Note (whether or not then due) all moneys and other amounts of the
Borrowers then or thereafter in possession of any Lender, the balance of any
deposit account (demand or time, mature or unmatured) of the Borrowers then or
thereafter with any Lender and every other claim of the Borrowers then or
thereafter against any of the Lenders.
8.2 Indemnification. The Borrowers agree to, and shall, indemnify and hold the
Agents and the Lenders harmless against any loss, as well as against any costs
or expenses (including legal fees and expenses), which any of the Agents or the
Lenders sustains or incurs as a consequence of any default in payment of the
principal amount of the Facility, interest accrued thereon or any other amount
payable hereunder, under the Note or under any Security Documents, including,
but not limited to, all actual losses incurred in liquidating or re-employing
fixed deposits made by third parties or funds acquired to effect or maintain the
Facility or any portion thereof. Any Lenders' certification of such costs and
expenses shall, absent any manifest error, be conclusive and binding on the
Borrowers.
8.3 Application of Moneys. Except as otherwise provided in any Security
Document, all moneys received by the Agents or the Lenders under or pursuant to
this Credit Facility Agreement, the Note or any of the Security Documents after
the happening of any Event of Default (unless cured to the satisfaction of the
Majority Lenders) shall be applied by the Administrative Agent in the following
manner:
(a) first, in or towards the payment or reimbursement of any expenses
or liabilities incurred by the Agents, or the Lenders in connection with the
ascertainment, protection or enforcement of their rights and remedies hereunder,
under the Note and under any of the Security Documents,
(b) secondly, in or towards payment of any interest owing in respect
of the Facility,
(c) thirdly, in or towards repayment of principal of the Facility,
(d) fourthly, in or towards payment of all other sums which may be
owing to the Agents, or any of them, or the Lenders under this Credit Facility
Agreement, under the Note or under any of the Security Documents,
(e) fifthly, in or towards payments of any amounts then owed under any
Interest Rate Agreement, including, but not limited to, any costs associated
with unwinding any Interest Rate Agreement, on a pari passu basis, and
(f) sixthly, the surplus (if any) shall be paid to the Borrowers or to
whosoever else may be entitled thereto.
9. COVENANTS
9.1 Affirmative Covenants. Each of the Borrowers hereby covenant and undertake
with the Lenders that, from the date hereof and so long as any principal,
interest or other moneys are owing in respect of this Credit Facility Agreement,
under the Note or under any of the Security Documents, each of the Borrowers
will:
(a) Performance of Agreements. duly perform and observe, and procure
the observance and performance by all other parties thereto (other than the
Agents and the Lenders) of, the terms of this Credit Facility Agreement, the
Note and the Security Documents;
(b) Notice of Default, etc. promptly upon, and in any event no later
than five (5) Banking Days after, obtaining knowledge thereof, inform the
Administrative Agent of the occurrence of (a) any Event of Default or of any
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default, (b) any litigation or governmental proceeding
pending or threatened against it or against any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect, including but not
limited to, in respect of any Environmental Claim, (c) the withdrawal of any
Vessel's rating by its Classification Society or the issuance by the
Classification Society of any material recommendation or notation affecting
class and (d) any other event or condition which is reasonably likely to have a
Material Adverse Effect;
(c) Obtain Consents. without prejudice to Section 2.1 and this Section
9.1, obtain every consent and do all other acts and things which may from time
to time be necessary or advisable for the continued due performance of all its
and the other Security Parties' respective obligations under this Credit
Facility Agreement, under the Note and under the Security Documents;
(d) Financial Information. deliver to each Lender:
(i) as soon as available but not later than one hundred twenty
(120) days after the end of each fiscal year of each of the
Borrowers, complete copies of the consolidated financial
reports of each of the Borrowers and its Subsidiaries
(together with a Compliance Certificate and a detailed
reconciliation of all of the differences between GAAP as at
December 31, 2004 and as at the time of delivery), all in
reasonable detail, which shall include at least the
consolidated balance sheet of each of the Borrowers and its
Subsidiaries as of the end of such year and the related
consolidated statements of income and sources and uses of
funds for such year, which shall be audited reports prepared
by an Acceptable Accounting Firm, and the Borrowers shall
use reasonable efforts to provide to each Lender as soon as
available but not later than one hundred eighty (180) days
after the end of each fiscal year of the Guarantor, complete
copies of the consolidated financial reports of the
Guarantor;
(ii) as soon as available but not later than forty-five (45) days
after the end of each of the first three quarters of each
fiscal year of each of the Borrowers, a quarterly interim
consolidated balance sheet of each of the Borrowers and its
Subsidiaries and the related consolidated profit and loss
statements and sources and uses of funds (together with a
Compliance Certificate and a detailed reconciliation of all
of the differences between GAAP as at December 31, 2004 and
as at the time of delivery), all in reasonable detail,
unaudited, but certified to be true and complete by the
chief financial officer of each of the Borrowers;
(iii) within ten (10) days of the filing thereof at the email
addresses set forth in Schedule 1, electronic copies of all
registration statements and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) and other material filings which
each of the Borrowers shall have filed with the Securities
and Exchange Commission or any similar governmental
authority;
(iv) promptly upon the mailing thereof to the shareholders of the
Borrowers, copies of all financial statements, reports,
proxy statements and other communications provided to the
Borrowers' shareholders;
(v) within ten (10) days of the Borrowers' receipt thereof,
copies of all audit letters or other correspondence from any
external auditors including material financial information
in respect of the Borrowers;
(vi) such other statements (including, without limitation,
monthly consolidated statements of operating revenues and
expenses), lists of assets and accounts, budgets, forecasts,
reports and other financial information with respect to its
business as the Administrative Agent may from time to time
request, certified to be true and complete by the chief
financial officer of each of the Borrowers;
(e) Vessel Valuations. reimburse the Administrative Agent for the cost
of appraisals of the Fair Market Value of the Vessels. The Administrative Agent
shall be entitled to obtain such valuations from two ship brokers approved by
the Lenders two times in each calendar year and upon the occurrence of an Event
of Default;
(f) Corporate Existence. do or cause to be done, and procure that each
Subsidiary of each of the Borrowers shall do or cause to be done, all things
necessary to preserve and keep in full force and effect its corporate existence,
or limited liability company existence, as the case may be, and all licenses,
franchises, permits and assets necessary to the conduct of its business;
(g) Books and Records. at all times keep, and cause each Subsidiary of
each of the Borrowers to keep, proper books of record and account into which
full and correct entries shall be made in accordance with GAAP;
(h) Taxes and Assessments. pay and discharge, and cause each
Subsidiary of each of the Borrowers to pay and discharge, all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
property prior to the date upon which penalties attach thereto; provided,
however, that it shall not be required to pay and discharge, or cause to be paid
and discharged, any such tax, assessment, charge or levy so long as the legality
thereof shall be contested in good faith and by appropriate proceedings or other
acts and it shall set aside on its books adequate reserves with respect thereto;
(i) Inspection. allow, and cause each Subsidiary to allow, upon ten
(10) Banking Days notice from the Administrative Agent, any representative or
representatives designated by the Administrative Agent, subject to applicable
laws and regulations, to visit and inspect any of its properties, and, on
request, to examine its books of account, records, reports, agreements and other
papers and to discuss its affairs, finances and accounts with its officers, all
at such times and as often as the Administrative Agent requests;
(j) Inspection and Survey Reports. if the Lenders shall so request,
each of the Borrowers shall permit the Lenders to inspect the Vessels and shall
provide the Lenders with copies of all internally generated inspection or survey
reports on the Vessels;
(k) Compliance with Statutes, Agreements, etc. do or cause to be done,
and cause each Subsidiary to do and cause to be done, all things necessary to
comply with all contracts or agreements to which it, or any Subsidiary is a
party, and all laws, and the rules and regulations thereunder, applicable to the
Borrowers or such Subsidiary, including, without limitation, those laws, rules
and regulations relating to employee benefit plans and environmental matters;
(l) Environmental Matters. promptly upon the occurrence of any of the
following conditions, provide to the Administrative Agent a certificate of an
executive officer thereof, specifying in detail the nature of such condition and
its proposed response or the response of its Environmental Affiliates: (a) its
receipt or the receipt by any other Security Party or any Environmental
Affiliates of either of the Borrowers or any other Security Party of any written
communication whatsoever that alleges that such person is not in compliance with
any applicable Environmental Law or Environmental Approval, if such
noncompliance could reasonably be expected to have a Material Adverse Effect,
(b) knowledge by it, or by any other Security Party or any Environmental
Affiliates of either of the Borrowers or any other Security Party that there
exists any Environmental Claim pending or threatened against any such person,
which could reasonably be expected to have a Material Adverse Effect, or (c) any
release, emission, discharge or disposal of any material that could form the
basis of any Environmental Claim against it, any other Security Party or against
any Environmental Affiliates of either of the Borrowers or any other Security
Party, if such Environmental Claim could reasonably be expected to have a
Material Adverse Effect. Upon the written request by the Administrative Agent,
it will submit to the Administrative Agent at reasonable intervals, a report
providing an update of the status of any issue or claim identified in any notice
or certificate required pursuant to this subsection;
(m) Vessel Management. cause each of the Vessels to be managed
commercially by the Top Tanker Management Inc., a wholly-owned subsidiary of the
Guarantor, which may subcontract the technical management of the Vessels to V
Ships or Unicom Management Services (Cyprus) Ltd. or any other management
company acceptable to the Majority Lenders;
(n) ISM Code, ISPS Code and MTSA Matters. (i) procure that the
Operator will comply with and ensure each of the Vessels will comply with the
requirements of the ISM Code, ISPS Code and MTSA in accordance with the
implementation schedule thereof, including (but not limited to) the maintenance
and renewal of valid certificates and when required, security plans, pursuant
thereto; and (ii) will procure that the Operator will immediately inform the
Administrative Agent if there is any threatened or actual withdrawal of its DOC,
SMC or the ISSC in respect of any Vessel; and (iii) will procure that the
Operator will promptly inform the Administrative Agent upon the issuance to the
Borrowers or Operator of a DOC and the issuance to any Vessel of an SMC or ISSC;
(o) Brokerage Commissions, etc. indemnify and hold each of the Agents
and the Lenders harmless from any claim for any brokerage commission, fee, or
compensation from any broker or third party resulting from the transactions
contemplated hereby;
(p) Deposit Accounts; Assignment. maintain an Operating Account with
the Administrative Agent and, upon the request of the Administrative Agent,
shall procure, and shall cause each other Security Party to procure, that all
earnings of any Vessels shall be paid into the Operating Account and the
Borrowers, and by its execution of the Consent and Agreement hereto, each other
Security Party, hereby pledges, assigns and grants to the Security Trustee, for
the benefit of the Lenders, a security interest in all funds from time to time
in the Operating Account;
(q) Insurance. maintain, and cause each other Security Party to
maintain, with financially sound and reputable insurance companies, insurance on
all their respective properties and against all such risks and in at least such
amounts as are usually insured against by companies of established reputation
engaged in the same or similar business from time to time; and
(r) Interest Rate Agreements. DVB shall be entitled to provide the
Borrowers with a quote for any interest rate derivatives product to be entered
into by the Borrowers in connection with the Facility and the Borrowers agree to
grant DVB a right of first refusal in respect thereof.
9.2 Negative Covenants. The Borrowers hereby covenant and undertake with the
Lenders that, from the date hereof and so long as any principal, interest or
other moneys are owing in respect of this Credit Facility Agreement, under the
Note or under any of the Security Documents, the Borrowers will not, and will
procure that the Guarantor will not, to the extent of Sections 9.2(e), (g), (h),
(i), (j) or (p), without the prior written consent of the Majority Lenders (or
all of the Lenders if required by Section 15.8):
(a) Liens. create, assume or permit to exist, any mortgage, pledge,
lien, charge, encumbrance or any security interest whatsoever upon any
Collateral or other property except:
(i) liens for taxes not yet payable for which adequate reserves
have been maintained;
(ii) the Mortgages, the Assignments and other liens in favor of
the Security Trustee;
(iii) liens, charges and encumbrances against their respective
Vessels permitted to exist under the terms of the Mortgages;
and
(iv) pledges of certificates of deposit or other cash collateral
securing any Security Party's reimbursement obligations in
connection with letters of credit now or hereafter issued
for the account of such Security Party in connection with
the establishment of the financial responsibility of the
Security Parties under 33 C.F.R. Part 130 or 46 C.F.R. Part
540, as the case may be, as the same may be amended or
replaced;
(b) Debt. (i) incur any Debt, excluding Debt to the Agents or any of
the Lenders hereunder, other than in the ordinary course of business, (ii) incur
any Debt that would cause the Borrowers to be in default under any provision of
Section 9.3 or (iii) make advances or extend credit to, or become obligated,
contingently or otherwise, in respect of any Debt of, a Subsidiary that is not
the Guarantor;
(c) Change of Flag, Class, Management or Ownership. change the flag of
any Vessel other than to a jurisdiction acceptable to the Majority Lenders,
their Classification Society other than to another member of the International
Association of Classification Societies, the technical management of any Vessel
other than to one or more technical management companies acceptable to the
Majority Lenders or the immediate or ultimate ownership of any Vessel;
(d) Chartering. enter into any bareboat charter with any party other
than the Borrowers or a Subsidiary or an Affiliate thereof, with respect to any
of the Vessels having a duration of, including any options to extend such
charter, more than twelve (12) months without the prior consent of the Majority
Lenders;
(e) Change in Business. materially change the nature of its business
or commence any business materially different from its current business;
(f) Sale or Pledge of Shares. sell, assign, transfer, pledge or
otherwise convey or dispose of any of the shares (including by way of spin-off,
installment sale or otherwise) of the capital stock, or limited liability
company interests, as the case may be, of either Borrower;
(g) Sale of Assets. sell, or otherwise dispose of, any Vessel (unless
otherwise in accordance with this Credit Facility Agreement) or, with respect to
the Guarantor, any other asset (including by way of spin-off, installment sale
or otherwise) which is substantial in relation to its assets taken as a whole,
other than such sales by the Guarantor to another;
(h) Changes in Offices. change the location of the chief executive
office of any Security Party, the office of the chief place of business of any
such parties or the office of the Security Parties in which the records relating
to the earnings or insurances of any Vessel are kept unless the Lenders shall
have received thirty (30) days prior written notice of such change;
(i) Consolidation and Merger. consolidate with, or merge into, any
corporation or other entity, or merge any corporation or other entity into it;
(j) Change Fiscal Year. change its fiscal year;
(k) Limitations on Ability to Make Distributions. create or otherwise
cause or permit to exist or become effective any consensual encumbrance or
restriction on the ability of the Guarantor to (i) pay dividends or make any
other distributions on its capital stock or limited liability company interests,
as the case may be, to the Borrowers or the Guarantor or pay any Debt owed to
the Borrowers, (ii) make any loans or advances to the Borrowers, or (iii)
transfer any of its property or assets to the Borrowers;
(l) Use of Corporate Funds. permit the Guarantor to pay out any funds
to any company or person except (i) in the ordinary course of business in
connection with the management of the business of the Borrowers and their
Subsidiaries, including the operation and/or repair of any of the Vessels and
other vessels owned or operated by such parties and (ii) the servicing of the
Debt permitted hereunder;
(m) Issuance of Shares. permit the Guarantor to issue or dispose of
any shares of its own capital stock or limited liability company interests, as
the case may be, to any person other than the Borrowers;
(n) No Money Laundering. in connection with this Credit Facility
Agreement or any of the Security Documents, contravene or permit the Guarantor
or any other Subsidiary to contravene, 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 comparable United States Federal and state laws. In
addition, the Borrowers confirm that they are the beneficiary (within the
meaning of Section 8 of the German Money Laundering Act (Geldwaschegesetz)) for
each Advance made or to be made available to it. The Borrowers will promptly
inform the Lenders (by written notice to the Agent) if the Borrowers are not or
ceases to be the beneficiary and will provide in writing the name and address of
the beneficiary;
(o) Use of Proceeds. will not use the proceeds of Advances in
violation of Regulation T, U or X; and
(p) Guarantor Chief Executive Officer. will not permit the Guarantor
to appoint a Chief Executive Officer other than ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, without the
Lenders' prior consent.
9.3 Financial Covenants. The Guarantor hereby covenants and undertakes with the
Lenders that, from the date hereof and so long as any principal or interest are
outstanding or other moneys are owing in respect of this Credit Facility
Agreement, under the Note or under any of the Security Documents, the Guarantor
will:
(a) Adjusted Net Worth. maintain at all times an Adjusted Net Worth of
not less than Two Hundred Million Dollars ($200,000,000) and not less than
Thirty Five Percent (35%) of the Total Assets;
(b) EBITDA to Fixed Charges. ensure that EBITDA shall at all times
exceed 120% of the aggregate amount of Fixed Charges; and
(c) Minimum Liquidity. at all times maintain Liquid Funds in the
greater of Ten Million Dollars ($10,000,000) for the Guarantor's total fleet, or
Five Hundred Thousand Dollars ($500,000) per Vessel.
9.4 Asset Maintenance. If at any time during the term of the Credit Facility
Agreement, the Fair Market Value of Vessels is less than the Required
Percentage, the Borrowers shall, within a period of thirty (30) days following
receipt by the Borrowers of written notice from the Administrative Agent
notifying the Borrowers of such shortfall and specifying the amount thereof
(which amount shall, in the absence of manifest error, be deemed to be
conclusive and binding on the Borrowers), either (i) deliver to the Security
Trustee such additional collateral as may be satisfactory to the Lenders in
their sole discretion of sufficient value to make the aggregate Fair Market
Value of said Vessel plus the additional collateral, equal to the Required
Percentage of the outstanding amount of the Tranche relating to that Vessel or
(ii) the Borrowers shall prepay such amount of the Facility (together with
interest thereon and any other monies payable in respect of such prepayment
pursuant to Section 5.4) as shall result in the Fair Market Value of that
Vessels being not less than the Required Percentage
10. ASSIGNMENT
This Credit Facility Agreement shall be binding upon, and inure to the benefit
of, the Borrowers and the Lenders, the Agents and their respective successors
and assigns, except that the Borrowers may not assign any of its rights or
obligations hereunder. Each Lender shall be entitled to assign its rights and
obligations under this Credit Facility Agreement or grant participation(s) in
the Facility to any subsidiary, holding company or other affiliate of such
Lender, to any subsidiary or other affiliate company of any thereof or to any
other bank or financial institution or collateralized loan obligation trust or
fund (a "CLO") without the consent of the Borrowers. Each Lender may transfer
all or any part of its rights, benefits and its obligations under this Credit
Facility Agreement and any of the other Security Documents to any subsidiary or
other affiliate company of any thereof or to any other bank or financial
institution or CLO (the "Transferee") if the Transferee, by delivery of such
undertaking, becomes bound by the terms of this Credit Facility Agreement and
agrees to perform all or, as the case may be, part of such Lender's obligations
under this Credit Facility Agreement. Each Lender may disclose to a prospective
assignee, transferee or to any other person who may propose entering into
contractual relations with such Lender in relation to the Credit Facility
Agreement and such information about each if the Borrowers and the Guarantor as
such Lender shall consider appropriate. The Borrowers will take all actions
requested by the Agents or any Lender to effect such assignment, including,
without limitation, the execution of a written consent to any Assignment and
Assumption Agreement.
11. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.
11.1 Illegality. In the event that by reason of any change in any applicable
law, regulation or regulatory requirement or in the interpretation thereof, a
Lender has a basis to conclude that it has become unlawful for any Lender to
maintain or give effect to its obligations as contemplated by this Credit
Facility Agreement, such Lender shall inform the Administrative Agent and the
Borrowers to that effect, whereafter the liability of such Lender to make its
Commitment available shall forthwith cease and the Borrowers shall be required
either to repay to such Lender that portion of the Facility advanced by such
Lender immediately or, if such Lender so agrees, to repay such portion of the
Facility to such Lender on the last day of any then current Interest Period in
accordance with and subject to the provisions of Section 11.5. In any such
event, but without prejudice to the aforesaid obligations of the Borrowers to
repay such portion of the Facility, the Borrowers and the relevant Lender shall
negotiate in good faith with a view to agreeing on terms for making such portion
of the Facility available from another jurisdiction or otherwise restructuring
such portion of the Facility on a basis which is not unlawful.
11.2 Increased Costs. If any change in applicable law, regulation or regulatory
requirement (including any applicable law, regulation or regulatory requirement
which relates to capital adequacy or liquidity controls or which affects the
manner in which any Lender allocates capital resources under this Credit
Facility Agreement), or in the interpretation or application thereof by any
governmental or other authority, shall:
(i) subject any Lender to any Taxes with respect to its income
from the Facility, or any part thereof; or
(ii) change the basis of taxation to any Lender of payments of
principal or interest or any other payment due or to become
due pursuant to this Credit Facility Agreement (other than a
change in the basis effected by the jurisdiction of
organization of such Lender, the jurisdiction of the
principal place of business of such Lender, the United
States of America, the State or City of New York or any
governmental subdivision or other taxing authority having
jurisdiction over such Lender (unless such jurisdiction is
asserted by reason of the activities of the Borrowers or any
of the other Security Parties) or such other jurisdiction
where the Facility may be payable); or
(iii) impose, modify or deem applicable any reserve requirements
or require the making of any special deposits against or in
respect of any assets or liabilities of, deposits with or
for the account of, or loans by, a Lender; or
(iv) impose on any Lender any other condition affecting the
Facility or any part thereof;
and the result of the foregoing is either to increase the cost to such Lender of
making available or maintaining its Commitment or any part thereof or to reduce
the amount of any payment received by such Lender, then and, in any such case,
if such increase or reduction, in the opinion of such Lender, materially affects
the interests of such Lender under or in connection with this Credit Facility
Agreement:
(i) the Lender shall notify the Administrative Agent and the Borrowers of
the happening of such event, and
(ii) the Borrowers agree forthwith upon demand to pay to such Lender such
amount as such Lender certifies to be necessary to compensate such
Lender for such additional cost or such reduction.
11.3 Nonavailability of Funds. If the Administrative Agent shall determine that,
by reason of circumstances affecting the London Interbank Market generally,
adequate and reasonable means do not or will not exist for ascertaining the
Applicable Rate for the Facility for any Interest Period, the Administrative
Agent shall give notice of such determination to the Borrowers. The Majority
Lenders shall then determine the interest rate and/or Interest Period to be
substituted for those which would otherwise have applied under this Credit
Facility Agreement. If the Majority Lenders are unable to agree upon such a
substituted interest rate and/or Interest Period within thirty (30) days of the
giving of such determination notice, the Administrative Agent shall set an
interest rate and Interest Period to take effect from the expiration of the
Interest Period in effect at the date of determination, which rate shall be
equal to the Margin plus the cost to the Lenders (as certified by each Lender)
of funding the Facility. In the event the state of affairs referred to in this
Section 11.3 shall extend beyond the end of the Interest Period, the foregoing
procedure shall continue to apply until circumstances are such that the
Applicable Rate may be determined pursuant to Section 6.
11.4 Lender's Certificate Conclusive. A certificate or determination notice of
any Lender as to any of the matters referred to in this Section 11 shall, absent
manifest error, be conclusive and binding on the Borrowers.
11.5 Compensation for Losses. Where the Facility or any portion thereof is to be
repaid by the Borrowers pursuant to this Section 11, the Borrowers agrees
simultaneously with such repayment to pay to the relevant Lender all accrued
interest to the date of actual payment on the amount repaid and all other sums
then payable by the Borrowers to the relevant Lender pursuant to this Credit
Facility Agreement, together with such amounts as may be certified by the
relevant Lender to be necessary to compensate such Lender for any actual loss,
premium or penalties incurred or to be incurred thereby on account of funds
borrowed to make, fund or maintain its Commitment or such portion thereof for
the remainder (if any) of the then current Interest Period or Interest Periods,
if any, but otherwise without penalty or premium.
12. CURRENCY INDEMNITY
12.1 Currency Conversion. If, for the purpose of obtaining or enforcing a
judgment in any court in any country, it becomes necessary to convert into any
other currency (the "judgment currency") an amount due in Dollars under this
Credit Facility Agreement, the Note or any of the Security Documents, then the
conversion shall be made, in the discretion of the Administrative Agent, at the
rate of exchange prevailing either on the date of default or on the day before
the day on which the judgment is given or the order for enforcement is made, as
the case may be (the "conversion date"), provided that the Administrative Agent
shall not be entitled to recover under this section any amount in the judgment
currency which exceeds at the conversion date the amount in Dollars due under
this Credit Facility Agreement, the Note, the Guaranty and/or any of the
Security Documents.
12.2 Change in Exchange Rate. If there is a change in the rate of exchange
prevailing between the conversion date and the date of actual payment of the
amount due, the Borrowers shall pay such additional amounts (if any, but, in any
event, not a lesser amount) as may be necessary to ensure that the amount paid
in the judgment currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount then due under this Credit Facility
Agreement, the Note and/or any of the Security Documents in Dollars; any excess
over the amount due received or collected by the Lenders shall be remitted to
the Borrowers.
12.3 Additional Debt Due. Any amount due from the Borrowers under this Section
12 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 this Credit Facility
Agreement, the Note and/or any of the Security Documents.
12.4 Rate of Exchange. The term "rate of exchange" in this Section 12 means the
rate at which the Administrative Agent in accordance with its normal practices
is able on the relevant date to purchase Dollars with the judgment currency and
includes any premium and costs of exchange payable in connection with such
purchase.
13. FEES AND EXPENSES
13.1 Fees. During the period beginning on the date of this Credit Facility
Agreement and ending on the Final Availability Date, the Borrowers shall pay,
quarterly in arrears, with the final payment to be made on the Final
Availability Date, from the date of this Credit Facility Agreement, to the
Administrative Agent (for the account of the Lenders), a commitment fee (the
"Commitment Fee") of twenty-five hundredths of one percent (.25%) per annum
payable on the average undrawn amount of the Facility. The Borrowers shall also
pay to the Administrative Agent an arrangement fee (the "Arrangement Fee") and a
Structuring Fee each equal to one-half of one percent (1/2%) of the Facility
payable to the Administrative Agent upon the execution of the Credit Facility
and each of which shall be refundable pro rata should either or both Advances
not be made for reasons soley the fault of the Lenders. The Borrowers shall also
pay to the Administrative Agent an agency fee (the "Agency Fee") equal to Five
Thousand Dollars ($5,000) per annum, payable to the Administrative Agent upon
the execution of the Credit Facility and on that date every year thereafter.
13.2 Expenses. The Borrowers agrees, whether or not the transactions hereby
contemplated are consummated, on demand to pay, or reimburse the Agents for
their payment of, the expenses of the Agents and (after the occurrence and
during the continuance of an Event of Default) the Lenders incident to said
transactions (and in connection with any supplements, amendments, waivers or
consents relating thereto or incurred in connection with the enforcement or
defense of any of the Agents' and the Lenders' rights or remedies with respect
thereto or in the preservation of the Agent's and the Lenders' priorities under
the documentation executed and delivered in connection therewith), including,
without limitation, all costs and expenses of preparation, negotiation,
execution and administration of this Credit Facility Agreement and the documents
referred to herein (including, but not limited to, Value Added Tax imposed on
any Lender related to those expenses), the fees and disbursements of the Agents'
and Lenders' counsel in connection therewith, as well as the fees and expenses
of any independent appraisers, surveyors, engineers, inspectors and other
consultants retained by the Agents in connection with this Agreement and the
transactions contemplated hereby and under the Security Documents, all costs and
expenses, if any, in connection with the enforcement of this Credit Facility
Agreement, the Note and the Security Documents and stamp and other similar
taxes, if any, incident to the execution and delivery of the documents
(including, without limitation, the Note) herein contemplated and to hold the
Agents and the Lenders free and harmless in connection with any liability
arising from the nonpayment of any such stamp or other similar taxes. Such taxes
and, if any, interest and penalties related thereto as may become payable after
the date hereof shall be paid immediately by the Borrowers to the Agents or the
Lenders, as the case may be, when liability therefor is no longer contested by
such party or parties or reimbursed immediately by the Borrowers to such party
or parties after payment thereof (if the Agents or the Lenders, at their sole
discretion, chooses to make such payment).
14. APPLICABLE LAW, JURISDICTION AND WAIVER
14.1 Applicable Law. This Credit Facility Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
14.2 Jurisdiction. The Borrowers hereby irrevocably submit to the jurisdiction
of the courts of the State of New York and of the United States District Court
for the Southern District of New York in any action or proceeding brought
against either of the Borrowers by any of the Lenders or the Agents under this
Credit Facility Agreement or under any document delivered hereunder and hereby
irrevocably agrees that valid service of summons or other legal process on it
may be effected by serving a copy of the summons and other legal process in any
such action or proceeding on the Borrowers by mailing or delivering the same by
hand to the Borrowers at the address indicated for notices in Section 16.1. The
service, as herein provided, of such summons or other legal process in any such
action or proceeding shall be deemed personal service and accepted by the
Borrowers as such, and shall be legal and binding upon the Borrowers for all the
purposes of any such action or proceeding. Final judgment (a certified or
exemplified copy of which shall be conclusive evidence of the fact and of the
amount of any indebtedness of the Borrowers to the Lenders or the Agent) against
the Borrowers in any such legal action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment. The Borrowers will
advise the Administrative Agent promptly of any change of address for the
purpose of service of process. Notwithstanding anything herein to the contrary,
the Lenders may bring any legal action or proceeding in any other appropriate
jurisdiction.
14.3 WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BY AND AMONG THE BORROWERS, THE
OTHER SECURITY PARTIES, THE AGENT AND THE LENDERS THAT EACH OF THEM HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY
PARTY HERETO AGAINST ANY OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTE OR THE SECURITY
DOCUMENTS.
15. THE AGENTS
15.1 Appointment of Agents. Each of the Lenders irrevocably appoints and
authorizes the Agents severally each to take such action as agent on its behalf
and to exercise such powers under this Credit Facility Agreement, the Note and
the Security Documents as are delegated to such Agent by the terms hereof and
thereof. No Agent nor any of their respective directors, officers, employees or
agents shall be liable for any action taken or omitted to be taken by it or them
under this Credit Facility Agreement, the Note or the Security Documents or in
connection therewith, except for its or their own gross negligence or willful
misconduct.
15.2 Security Trustee as Trustee. Each of the Lenders irrevocably appoints the
Security Trustee as trustee on its behalf with regard to (i) the security,
powers, rights, titles, benefits and interests (both present and future)
constituted by and conferred on the Lenders or any of them or for the benefit
thereof under or pursuant to this Credit Facility Agreement, the Note or any of
the Security Documents (including, without limitation, the benefit of all
covenants, undertakings, representations, warranties and obligations given, made
or undertaken to any Lender in the Agreement, the Note or any Security
Document), (ii) all moneys, property and other assets paid or transferred to or
vested in any Lender or any agent of any Lender or received or recovered by any
Lender or any agent of any Lender pursuant to, or in connection with, this
Credit Facility Agreement, the Note or the Security Documents whether from any
Security Party or any other person and (iii) all money, investments, property
and other assets at any time representing or deriving from any of the foregoing,
including all interest, income and other sums at any time received or receivable
by any Lender or any agent of any Lender in respect of the same (or any part
thereof). The Security Trustee hereby accepts such appointment.
15.3 Distribution of Payments. Whenever any payment is received by the
Administrative Agent from the Borrowers or any other Security Party for the
account of the Lenders, or any of them, whether of principal or interest on the
Note, commissions, fees under Section 13 or otherwise, it will thereafter cause
to be distributed on the same day if received before 3 p.m. New York time, or on
the next day if received thereafter, like funds relating to such payment ratably
to the Lenders according to their respective Commitments, in each case to be
applied according to the terms of this Credit Facility Agreement.
15.4 Holder of Interest in Note. The Agents may treat each Lender as the holder
of all of the interest of such Lender in the Note.
15.5 No Duty to Examine, Etc. The Agents shall not be under a duty to examine or
pass upon the validity, effectiveness or genuineness of any of this Credit
Facility Agreement, the Note, the Security Documents or any instrument, document
or communication furnished pursuant to this Credit Facility Agreement or in
connection therewith or in connection with the Note or any Security Document,
and the Agents shall be entitled to assume that the same are valid, effective
and genuine, have been signed or sent by the proper parties and are what they
purport to be.
15.6 Agents as Lenders. With respect to that portion of the Facility made
available by it, each Agent shall have the same rights and powers hereunder as
any other Lender and may exercise the same as though it were not an Agent, and
the term "Lender" or "Lenders" shall include each Agent in its capacity as a
Lender. Each Agent and its affiliates may accept deposits from, lend money to
and generally engage in any kind of business with, the Borrowers and the other
Security Parties, as if it were not an Agent.
15.7 Acts of the Agents. Each Agent shall have duties and reasonable discretion,
and shall act as follows:
(a) Obligations of the Agents. The obligations of each Agent under
this Credit Facility Agreement, under the Note and under the Security Documents
are only those expressly set forth herein and therein.
(b) No Duty to Investigate. No Agent shall at any time be under any
duty to investigate whether an Event of Default, or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, has occurred or to investigate the performance of this Credit Facility
Agreement, the Note or any Security Document by any Security Party.
(c) Discretion of the Agents. Each Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Credit Facility Agreement, the Note and the Security Documents, unless
the Administrative Agent shall have been instructed by the Majority Lenders to
exercise such rights or to take or refrain from taking such action; provided,
however, that no Agent shall be required to take any action which exposes such
Agent to personal liability or which is contrary to this Credit Facility
Agreement or applicable law.
(d) Instructions of Majority Lenders. Each Agent shall in all cases be
fully protected in acting or refraining from acting under this Credit Facility
Agreement, under the Note, or under any Security Document in accordance with the
instructions of the Majority Lenders, and any action taken, or failure to act
pursuant to such instructions, shall be binding on all of the Lenders.
15.8 Certain Amendments. Neither this Credit Facility Agreement, the Note nor
any of the Security Documents nor any terms hereof or thereof may be amended
unless such amendment is approved by the Borrowers and the Majority Lenders,
provided that no such amendment shall, without the written consent of each
Lender affected thereby, (i) reduce the interest rate or extend the time of a
scheduled payment of principal or interest or fees on the Facility, or reduce
the principal amount of the Facility or any fees hereunder, (ii) increase or
decrease the Commitment of any Lender or subject any Lender to any additional
obligation (it being understood that a waiver of any Event of Default, other
than a payment default, or any mandatory repayment of Facility shall not
constitute a change in the terms of any Commitment of any Lender), (iii) amend,
modify or waive any provision of this Section 15.8, (iv) amend the definition of
Majority Lenders or any other definition referred to in this Section 15.8, (v)
consent to the assignment or transfer by the Borrowers of any of their rights
and obligations under this Credit Facility Agreement, (vi) release any Security
Party from any of its obligations under any Security Document except as
expressly provided herein or in such Security Document or (vii) amend any
provision relating to the maintenance of collateral under Section 9.4; provided,
further, that approval by all Lenders shall be required for any amendment or
waivers with respect to Section 5.3 of this Credit Facility Agreement. All
amendments approved by the Majority Lenders under this Section 15.8 must be in
writing and signed by the Borrowers, each of the Lenders comprising the Majority
Lenders and, if applicable, each Lender affected thereby and any such amendment
shall be binding on all the Lenders; provided, however, that any amendments or
waivers with respect to Section 5.3 of this Credit Facility Agreement must be in
writing and signed by the Borrowers and all of the Lenders.
15.9 Assumption re Event of Default. Except as otherwise provided in Section
15.15, the Administrative Agent shall be entitled to assume that no Event of
Default, or event which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, has occurred and is continuing, unless the
Administrative Agent has been notified by any Security Party of such fact, or
has been notified by a Lender that such Lender considers that an Event of
Default or such an event (specifying in detail the nature thereof) has occurred
and is continuing. In the event that the Administrative Agent shall have been
notified, in the manner set forth in the preceding sentence, by any Security
Party or any Lender of any Event of Default or of an event which with the giving
of notice or lapse of time, or both, would constitute an Event of Default, the
Administrative Agent shall notify the Lenders and shall take action and assert
such rights under this Credit Facility Agreement, under the Note and under
Security Documents as the Majority Lenders shall request in writing.
15.10 Limitations of Liability. Neither any Agent nor any of the Lenders shall
be under any liability or responsibility whatsoever:
(a) to any Security Party or any other person or entity as a
consequence of any failure or delay in performance by, or any breach by, any
other Lenders or any other person of any of its or their obligations under this
Credit Facility Agreement or under any Security Document;
(b) to any Lender or Lenders as a consequence of any failure or delay
in performance by, or any breach by, any Security Party of any of its respective
obligations under this Credit Facility Agreement, under the Note or under the
Security Documents; or
(c) to any Lender or Lenders for any statements, representations or
warranties contained in this Credit Facility Agreement, in any Security Document
or in any document or instrument delivered in connection with the transaction
hereby contemplated; or for the validity, effectiveness, enforceability or
sufficiency of this Credit Facility Agreement, the Note, any Security Document
or any document or instrument delivered in connection with the transactions
hereby contemplated.
15.11 Indemnification of the Agents. The Lenders agree to indemnify each Agent
(to the extent not reimbursed by the Security Parties or any thereof), pro rata
according to the respective amounts of their Commitments, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including legal fees and expenses incurred in investigating claims
and defending itself against such liabilities) which may be imposed on, incurred
by or asserted against, such Agent in any way relating to or arising out of this
Credit Facility Agreement, the Note or any Security Document, any action taken
or omitted by such Agent thereunder or the preparation, administration,
amendment or enforcement of, or waiver of any provision of, this Credit Facility
Agreement, the Note or any Security Document, except that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Agent's gross negligence or willful misconduct.
15.12 Consultation with Counsel. Each of the Agents may consult with legal
counsel reasonably selected by such Agent and shall not be liable for any action
taken, permitted or omitted by it in good faith in accordance with the advice or
opinion of such counsel.
15.13 Resignation. Any Agent may resign at any time by giving thirty (30) days'
written notice thereof to the other Agents, the Lenders and the Borrowers. Upon
any such resignation, the Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving notice of resignation, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent which shall be a bank or trust company of
recognized standing. Any resignation by an Agent pursuant to this Section 15.13
shall be effective only upon the appointment of a successor Agent. The
appointment of any successor Agent shall be subject to the prior written consent
of the Borrowers, such consent not to be unreasonably withheld. After any
retiring Agent's resignation as Agent hereunder, the provisions of this Section
15 shall continue in effect for its benefit with respect to any actions taken or
omitted by it while acting as Agent.
15.14 Representations of Lenders. Each Lender represents and warrants to each
other Lender and each Agent that:
(a) in making its decision to enter into this Credit Facility
Agreement and to make its Commitment available hereunder, it has independently
taken whatever steps it considers necessary to evaluate the financial condition
and affairs of the Security Parties, that it has made an independent credit
judgment and that it has not relied upon any statement, representation or
warranty by any other Lender or any Agent; and
(b) so long as any portion of its Commitment remains outstanding, it
will continue to make its own independent evaluation of the financial condition
and affairs of the Security Parties.
15.15 Notification of Event of Default. The Administrative Agent hereby
undertakes to promptly notify the Lenders, and the Lenders hereby promptly
undertake to notify the Administrative Agent and the other Lenders, of the
existence of any Event of Default, which shall have occurred and be continuing,
of which the Administrative Agent or Lender has actual knowledge.
15.16 No Agency or Trusteeship if not Syndicated. Unless and until the Loan is
syndicated or at any other time DVB is the only Lender, all references to the
terms "Agent" and "Security Trustee" shall be deemed to be references to DVB as
Lender and not as agent or security trustee.
16. NOTICES AND DEMANDS
16.1 Notices. All notices, requests, demands and other communications to any
party hereunder shall be in writing (including prepaid overnight courier,
facsimile transmission or similar writing) and shall be given to the Borrowers
at the address or facsimile number set forth below and to the Lenders and the
Agents at their address and facsimile numbers set forth in Schedule 1 or at such
other address or facsimile numbers as such party may hereafter specify for the
purpose by notice to each other party hereto. Each such notice, request or other
communication shall be effective (i) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section 16.1 and
telephonic confirmation of receipt thereof is obtained or (ii) if given by mail,
prepaid overnight courier or any other means, when received at the address
specified in this Section or when delivery at such address is refused.
If to the Borrowers:
c/o Top Tanker Management Inc.
109-111 Messogion Avenue
Polita Centre, ▇▇▇▇. ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
17. MISCELLANEOUS
17.1 Time of Essence. Time is of the essence with respect to this Credit
Facility Agreement but no failure or delay on the part of any Lender or any
Agent to exercise any power or right under this Credit Facility Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise by any
Lender or any Agent of any power or right hereunder preclude any other or
further exercise thereof or the exercise of any other power or right. The
remedies provided herein are cumulative and are not exclusive of any remedies
provided by law.
17.2 Unenforceable, etc., Provisions-Effect. In case any one or more of the
provisions contained in this Credit Facility Agreement, the Note or in any
Security Document would, if given effect, be invalid, illegal or unenforceable
in any respect under any law applicable in any relevant jurisdiction, said
provision shall not be enforceable against the relevant Security Party, but the
validity, legality and enforceability of the remaining provisions herein or
therein contained shall not in any way be affected or impaired thereby.
17.3 References. References herein to Sections, Exhibits and Schedules are to be
construed as references to sections of, exhibits to, and schedules to, this
Credit Facility Agreement, unless the context otherwise requires.
17.4 Further Assurances. The Borrowers agree that if this Credit Facility
Agreement or any Security Document shall, in the reasonable opinion of the
Lenders, at any time be deemed by the Lenders for any reason insufficient in
whole or in part to carry out the true intent and spirit hereof or thereof, it
will execute or cause to be executed such other and further assurances and
documents as in the opinion of the Lenders may be required in order to more
effectively accomplish the purposes of this Credit Facility Agreement, the Note
or any Security Document.
17.5 Prior Agreements, Merger. Any and all prior understandings and agreements
heretofore entered into between the Security Parties on the one part, and the
Agents or the Lenders, on the other part, whether written or oral, other than
the Fee Letter, are superseded by and merged into this Credit Facility Agreement
and the other agreements (the forms of which are exhibited hereto) to be
executed and delivered in connection herewith to which the Security Parties, the
Agents and/or the Lenders are parties, which alone fully and completely express
the agreements between the Security Parties, the Agents and the Lenders.
17.6 Entire Agreement; Amendments. This Credit Facility Agreement constitutes
the entire agreement of the parties hereto, including all parties added hereto
pursuant to an Assignment and Assumption Agreement. Subject to Section 15.8, any
provision of this Credit Facility Agreement, the Note or any Security Document
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Borrowers, the Agents and the Majority Lenders. This Credit
Facility Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all such counterparts together shall constitute
one and the same instrument.
17.7 Indemnification. The Borrowers and, by its execution and delivery of the
Consent and Agreement set forth below, each of the other Security Parties
jointly and severally agree to indemnify each Lender and each Agent, their
respective successors and assigns, and their respective officers, directors,
employees, representatives and agents (each an "Indemnitee") from, and hold each
of them harmless against, any and all losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitee in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto) that may at
any time (including, without limitation, at any time following the payment of
the obligations of the Borrowers hereunder) be imposed on, asserted against or
incurred by, any Indemnitee as a result of, or arising out of or in any way
related to or by reason of, (a) any violation by any Security Party (or any
charterer or other operator of any Vessel) of any applicable Environmental Law,
(b) any Environmental Claim arising out of the management, use, control,
ownership or operation of property or assets by any Security Party (or, after
foreclosure, by any Lender or any Agent or any of their respective successors or
assigns), (c) the breach of any representation, warranty or covenant set forth
in Sections 2.1 (p) or 9.1(l), (d) the Facility (including the use of the
proceeds of the Facility and any claim made for any brokerage commission, fee or
compensation from any Person), or (e) the execution, delivery, performance or
non-performance of this Credit Facility Agreement, the Note, any Security
Document, or any of the documents referred to herein or contemplated hereby
(whether or not the Indemnitee is a party thereto). If and to the extent that
the obligations of the Security Parties under this Section are unenforceable for
any reason, the Borrowers and, by its execution and delivery of the Consent and
Agreement set forth below, each of the other Security Parties jointly and
severally agree to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law. The obligations
of the Security Parties under this Section 17.7 shall survive the termination of
this Credit Facility Agreement and the repayment to the Lenders of all amounts
owing thereto under or in connection herewith.
17.8 Headings. In this Credit Facility Agreement, section headings are inserted
for convenience of reference only and shall not be taken into account in the
interpretation of this Credit Facility Agreement.
17.9 WAIVER OF IMMUNITY. TO THE EXTENT THAT ANY SECURITY PARTY HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM SUIT, JURISDICTION OF ANY COURT OR ANY LEGAL
PROCESS (WHETHER THROUGH ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION, EXECUTION OF A JUDGMENT, OR FROM ANY OTHER LEGAL PROCESS OR REMEDY)
WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH SECURITY PARTY HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS CREDIT FACILITY
AGREEMENT AND THE OTHER SECURITY DOCUMENTS.
IN WITNESS whereof, the parties hereto have caused this Credit Facility
Agreement to be duly executed by their duly authorized representatives as of the
day and year first above written.
VITSI SHIPPING COMPANY LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: PRESIDENT/DIRECTOR
PARNIS SHIPPING COMPANY LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: PRESIDENT/DIRECTOR
DVB BANK AG
acting through its New York Branch,
as Administrative Agent and Security Trustee
By: /s/ Sybren Hoelstre
----------------------------------
Name: Sybren Hoelstre
Title: SVP
By: /s/ ▇▇▇▇ Eikemo
----------------------------------
Name: ▇▇▇▇ Eikemo
Title: VP
The Lenders:
DVB BANK AG
acting through its New York Branch
By: /s/ Sybren Hoelstre
----------------------------------
Name: Sybren Hoelstre
Title: SVP
By: /s/ ▇▇▇▇ Eikemo
----------------------------------
Name: ▇▇▇▇ Eikemo
Title: VP
CONSENT AND AGREEMENT
---------------------
The undersigned, referred to in the foregoing Credit Facility Agreement as the
"Guarantor", hereby consents and agrees to said Credit Facility Agreement and to
the documents contemplated thereby and to the provisions contained therein
relating to conditions to be fulfilled and obligations to be performed by the
undersigned pursuant to or in connection with said Credit Facility Agreement and
agrees particularly to be bound by the representations, warranties and covenants
relating to the undersigned contained in Sections 2 and 9 of said Credit
Facility Agreement to the same extent as if the undersigned were a party to said
Credit Facility Agreement, and expressly agrees to the grant of a security
interest in favor of the Security Trustee pursuant to Section 9.1(q) of said
Credit Facility Agreement.
TOP TANKERS INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CFO
Schedule 1
Lenders Commitment
DVB Bank AG $56,500,000
New York Representative ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Gorm Eikemo
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
DVB Bank America N.V.
Zeelandia Office Park
▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Antillies
Attention: Gershwin Maduro/▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Agents
DVB Bank AG
New York Representative Office
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Gorm Eikemo
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
DVB Bank America N.V.
Zeelandia Office Park
▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Antillies
Attention: Gershwin Maduro/▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Schedule 2
The Vessels
Official Vessel
Name Flag Built Dwt Number Type Owner
---- ---- ----- --- ------ ---- -----
M/T STOPLESS Liberia 1991 154,970 12600 Suezmax Vitsi Shipping
(ex M/T ▇▇▇▇▇▇▇) Tanker Company Limited
M/T STAINLESS ▇▇▇▇▇▇▇▇ 1992 149,599 2233 Suezmax Parnis Shipping
(ex M/T ▇▇▇▇▇) Islands Tanker Company Limited
01029.0026 #545280v3