To: Omega Navigation Enterprises Inc. Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro MH 96960,
EXHIBIT
4.6
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To:
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Omega
Navigation Enterprises Inc.
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Trust
Company Complex,
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Ajeltake
Road,
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Ajeltake
Islands,
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Majuro
MH 96960,
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▇▇▇▇▇▇▇▇
Islands
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2007
Dear
Sirs,
We
are pleased to place a loan facility (hereinafter called "the Loan") at your disposal on
the following terms and conditions:-
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1.
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Borrower
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:
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Omega
Navigation Enterprises Inc. of the Republic of the ▇▇▇▇▇▇▇▇
Islands
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2.
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Lender
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:
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HSH
Nordbank AG acting through its office at ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
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3.
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Amount
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:
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Two
million four hundred and thirty two thousand six hundred and fifty United
States Dollars (US$2,432,650).
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4.
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Interest
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4.1
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Interest
rate Interest shall accrue and be payable on each day
elapsing and shall be calculated on the basis of a 360 day year. The
Borrower shall pay interest on outstanding principal in arrears on the
final day of each Interest Period (as defined in clause 4.2) or every
three months, if any Interest Period exceeds three months (or on the due
date for repayment of the Loan if earlier) at the rate (the "Interest Rate")
certified by the Lender to be one point two five per cent (1.25%) per
annum over LIBOR.
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4.2
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Interest
Periods The first period for the calculation of interest
in respect of the Loan (the "Interest Period") shall
commence on the date of drawdown of the Loan and each subsequent Interest
Period shall commence on the final day of the preceding Interest
Period. Each Interest Period shall be either, one, three or six
months at the option of the Borrower by written notice to the Lender not
later than 11.00 a.m. on the third banking day before the beginning of the
Interest Period in question, or such other duration as may be selected by
the Borrower and agreed by the Lender. If any Interest Period
would otherwise expire on a day which is not a banking day in London, New
York, or Hamburg ("Banking Day") that
Interest Period shall be extended to expire on the next succeeding Banking
Day.
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5.
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Availability
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5.1
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Conditions Precedent The
obligation of the Lender to make the Loan available is contingent upon the
Lender having received each of the following in form and substance
satisfactory to the Lender on or before the Drawdown
Date:-
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5.1.1
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One
counterpart of this Facility Letter duly signed by a duly authorised
representative of the Borrower.
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5.1.2
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Such
corporate documents and corporate authorisations of the Borrower as the
Lender may require.
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5.1.3
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Copies
of all necessary permissions (if any are so required) by the relevant
governmental authorities for the obtaining and servicing of the
Loan.
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5.1.4
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Unqualified
legal opinions from lawyers appointed by the Lender in form and substance
acceptable to the Lender.
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5.1.5
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Evidence
that the sum of ten thousand United States Dollars (US $10,000) has been
deposited with the Lender for the purpose of paying the Arrangement Fee
(defined in clause 8).
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5.1.6
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The
Borrower shall supply to the Lender, its audited (or un-audited, if the
audit has not been completed) consolidated financial statements for the
financial year ended 31 December
2006.
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5.2
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No
waiver If the Lender in its absolute discretion
allows the Loan to be drawn down notwithstanding that it has not received
all the items specified in clause 5.1 hereof the Borrower hereby covenants
to procure the delivery of all the missing items to the Lender within
fifteen (15) days after the Drawdown Date of the
Loan.
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2
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6.
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Purpose
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The
purpose of the Loan is to assist the Borrower in providing inter-company
loans to Orange Navigation Inc. and Baytown Navigation Inc. respectively
(together, the "Owners", and each an
"Owner"), which
are both subsidiaries of the Borrower, to assist them in part –financing
the purchase of the Ice Class 1A coated Panamax –Tankers m.t. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ (with IMO number 9314167) and m.t. OMEGA ▇▇▇▇▇▇▇▇ with (IMO
number 9314179) (together, the "Ships" and each a "Ship") each built at STX
Shipyard of South Korea and upon delivery to be registered under the laws
and flag of the Republic of Liberia in the ownership of each respective
Owner.
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7.
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Drawdown
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Subject
to the provisions of clause 5 hereof, the Loan shall be drawn down in one
amount on the delivery date of the last Ship to be delivered to its Owner
but not later than 15 May 2007 (the "Drawdown Date") upon
the Borrower giving due notice of
drawdown.
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8.
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Fee
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The
Borrower shall pay the Lender an arrangement fee of ten thousand United
States Dollars (US $10,000) no later than the Drawdown Date of the Loan
(the "Arrangement
Fee").
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9.
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Indemnity
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All
costs, legal fees, registration fees, taxes, stamp duties and all other
charges and disbursements whatsoever incurred by the Lender in connection
with the preparation, execution and/or administration of this letter and
the documents executed pursuant thereto and the completion protection
and/or enforcement of the Lender's security hereunder or thereunder shall
be paid by the Borrower forthwith upon the demand by the
Lender.
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3
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10.
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Repayment
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The
Borrower shall repay the Loan in full in one amount on the date falling
364 days after the Drawdown Date but not later than May 14 2008 (the "Final Maturity
Date").
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11.
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Prepayment
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11.1
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Voluntary Prepayment
Subject to fifteen (15) days' prior written notice to the Lender the
Borrower may prepay the whole (but not part) of the Loan on the final day
of any Interest Period. Any prepayment under this clause will be made
without penalty.
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11.2
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Mandatory prepayment on sale or
Total Loss If a Ship is sold by its Owner, or
becomes a Total Loss, the Borrower shall, simultaneously with any such
sale or within one hundred and twenty (120) days after any such Total
Loss, prepay the whole of the Loan, together with accumulated interest
thereon. If such prepayment does not take place on the last day
of an Interest Period, the Borrower has to compensate the Lender for any
costs, losses, premiums or penalties incurred by the Lender as a result of
its receiving any prepayment of all or any part of the
Loan.
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Any
amount so prepaid shall not be available for
re-borrowing.
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12.
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Payments
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12.1
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All
payments by the Borrower hereunder, shall be made in United States Dollars
free and clear of taxes, deductions or withholdings to such bank or banks
as the Lender may nominate from time to time. In the event that any taxes
deductions or withholdings are introduced the Borrower shall pay such
additional amounts as will result in the Lender receiving the full amount
due to it hereunder.
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12.2
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If
the Borrower for any reason defaults in the payment of any amount due on
its due date under this Facility Letter, the Borrower shall on the demand
of the Lender from time to time pay interest on the defaulted amounts at
the Default Rate (as defined below) from the date of default until the
date of actual payment to the Lender. The Lender in such
circumstances reserves the right to claim additional
damages.
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12.3
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The
"Default Rate"
means the Interest Rate plus two per cent (2%) per
annum.
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4
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13.
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Judgment
Currency
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The
Borrower shall indemnify the Lender fully for any loss or damage arising
from any judgment obtained or enforced in respect of the non-payment of
any amount by the Borrower under or pursuant to this Facility Letter
consequent upon any variation of rates of exchange between the currency in
which that amount was due and the currency in which that judgment is
obtained.
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14.
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Loan
Account
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The
Lender shall open and maintain a loan account in the name of the Borrower
showing the advance of the Loan, the computation and payment of interest
and the payment of all other sums due hereunder. The Borrower's
obligation to repay the Loan, pay interest thereon and all other sums
shall be evidenced by the entries from time to time made therein, such
entries to be conclusive and binding on the Borrower. A
certificate issued by the Lender in respect of such account or any other
matter in connection with this Facility Letter shall save in the case of
manifest error be conclusive and binding on the
Borrower.
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15.
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Assignment
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15.1
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Assignment by Lender The Lender may
assign all or any part of its rights under the Loan to any other bank or
financial institution or to a trust, fund or other entity which is
regularly engaged in or established for the purpose of making, purchasing
or investing in liens, securities or other financial assets (an “Assignee”) and provided
that no Event of Default has occurred with the consent of the Borrower
(which consent shall not be unreasonably withheld or
delayed).
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15.2
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Benefit and
burden This Facility Letter shall be binding upon, and
endure for the benefit of, the Lender, the Borrower and their respective
successors.
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15.3
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No assignment by
Borrower The Borrower may not assign or transfer any of its rights
or obligations under this Facility
Letter.
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5
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16.
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Application
of Funds
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After
repayment of the Loan has been demanded by the Lender any and all moneys
received by the Lender under or pursuant to this Facility Letter shall be
applied by the Lender as follows:-
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16.1
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first,
in payment of all unpaid costs and expenses of the Lender;
and
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16.2
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secondly,
in payment of any and all other sums whatsoever due and payable to the
Lender under this Facility Letter in such order as the Lender shall select
in its discretion.
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17.
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Representations
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No
litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency have been started or (to the
best of the Borrower's knowledge threatened) which, if adversely
determined, might reasonably be expected to have a materially adverse
effect on the business, assets, financial condition or credit worthiness
of the Borrower.
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18.
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Financial
Undertakings
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18.1
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Financial Covenants The
Borrower shall procure that the financial covenants contained in clause
8.7 of the Loan Agreement (as defined in clause 21) are complied with in
all respects.
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18.2
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Financial
statements The Borrower shall supply to the Lender
at the end of each Financial Quarter a compliance certificate (in form and
substance acceptable to the Lender), signed by the Borrower's Chief
Financial Officer, setting out (in reasonable detail) computations as to
compliance with clause 18.1 as at the date as at which those financial
statements were drawn up.
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19.
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General
covenants
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The
Borrower shall not without the prior written consent of the Lender make
any substantial change to the general nature of its business from that
carried on at the date of this Facility
Letter.
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6
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20.
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Further
Assurance
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The
Borrower shall from time to time at the written request of the Lender do
all such things and execute or procure the execution of all such documents
as the Lender may consider necessary or desirable for giving full effect
to this Facility Letter and the documents executed pursuant
hereto.
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21.
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Definitions
and Interpretation
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The
terms "Borrower's
Group", "Encumbrance",
"Financial
Quarter", "LIBOR",
"Permitted
Liens" and "Total
Loss" defined in the loan agreement made between the (1)
Borrower and (2) the banks and financial institutions whose names and
addresses are set out in Schedule 1, Part 1 thereto, the Lender (in its
capacity as mandated lead arranger), the Lender (in its capacity as swap
bank) and the Lender (in its capacity as agent, security agent and
trustee) dated 7 April 2006 as amended and supplemented by a
first supplemental agreement dated 28 July 2006 and as further amended and
supplemented by a second supplemental agreement dated 21 March 2007 (the
"Loan
Agreement"), shall have the same meaning (mutatis
mutandis) when used in this Facility
Letter.
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22
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Events
of Default
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22.1
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Events
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There
shall be an Event of Default if:
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22.1.1
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Non-payment: the
Borrower fails to pay any sum payable by it under this Facility Letter at
the time, in the currency and in the manner stipulated in this Facility
Letter (and so that, for this purpose, sums payable on demand shall be
treated as having been paid at the stipulated time if paid within three
(3) Banking Days of demand); or
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22.1.2
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Breach of other
obligations: the Borrower commits any breach of or omits to observe
any of its obligations or undertakings (including, without limitation, any
financial covenant) expressed to be assumed by it under this Facility
Letter and, in respect of any such breach or omission which in the opinion
of the Lender is capable of remedy, such action as the Lender may require
shall not have been taken within fourteen (14) days of the Lender
notifying the Borrower of such default and of such required action;
or
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7
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22.1.3
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Misrepresentation: any
representation or warranty made or deemed to be made or repeated by or in
respect of the Borrower in or pursuant this Facility Letter or in any
notice, certificate or statement referred to in or delivered
under this Facility Letter is or proves to have been incorrect
or misleading in any material respect; or
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22.1.4
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Cross-default: any
indebtedness of the Borrower is not paid when due or any indebtedness of
the Borrower becomes (whether by declaration or automatically in
accordance with the relevant agreement or instrument constituting the
same) due and payable prior to the date when it would otherwise have
become due (unless as a result of the exercise by the Borrower of a
voluntary right of prepayment), or any creditor of the Borrower becomes
entitled to declare any such indebtedness due and payable or any facility
or commitment available to the Borrower relating to indebtedness is
withdrawn, suspended or cancelled by reason of any default (however
described) of the person concerned unless the Borrower shall have
satisfied the Lender that such withdrawal, suspension or cancellation will
not affect or prejudice in any way the Borrower’s ability to pay its debts
as they fall due and fund its commitments, or any guarantee given by the
Borrower in respect of indebtedness is not honoured when due and called
upon; or
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22.1.5
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Legal process: any
judgment or order made against the Borrower is not stayed or complied with
within seven (7) days or a creditor attaches or takes possession of, or a
distress, execution, sequestration or other process is levied or enforced
upon or sued out against, any of the undertakings, assets, rights or
revenues of the Borrower and is not discharged within seven (7) days;
or
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22.1.6
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Insolvency: the Borrower
or any Owner is unable or admits inability to pay its debts as they fall
due; suspends making payments on any of its debts or announces an
intention to do so; becomes insolvent; has assets
the value of which is less than the value of its liabilities (taking into
account contingent and prospective liabilities); or suffers the
declaration of a moratorium in respect of any of its
indebtedness; or
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8
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22.1.7
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Reduction or loss of
capital: a meeting is convened by the Borrower for the purpose of
passing any resolution to purchase, reduce or redeem any of its share
capital; or
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22.1.8
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Winding up: any
corporate action, legal proceedings or other procedure or step is taken
for the purpose of winding up the Borrower or an order is made or
resolution passed for the winding up of the Borrower or a notice is issued
convening a meeting for the purpose of passing any such resolution;
or
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22.1.9
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Administration: any
petition is presented, notice given or other step is taken for the purpose
of the appointment of an administrator of the Borrower and/or the Lender
believes that any such petition or other step is imminent or an
administration order is made in relation to the Borrower;
or
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22.1.10
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Appointment of receivers and
managers: any administrative or other receiver is appointed of the
Borrower or any part of its assets and/or undertaking or any other steps
are taken to enforce any encumbrance over all or any part of the assets of
the Borrower; or
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22.1.11
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Compositions: any
corporate action, legal proceedings or other procedures or steps are
taken, or negotiations commenced, by the Borrower or by any of its
creditors with a view to the general readjustment or rescheduling of all
or part of its indebtedness or to proposing any kind of composition,
compromise or arrangement involving such company and any of its creditors;
or
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22.1.12
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Analogous proceedings:
there occurs, in relation to the Borrower, in any country or territory in
which it carries on business or to the jurisdiction of whose courts any
part of their assets is subject, any event which, in the reasonable
opinion of the Lender, appears in that country or territory to correspond
with, or have an effect equivalent or similar to, any of those mentioned
in clauses 22.1.5 to 22.1.11 (inclusive) or the Borrower otherwise
becomes subject, in any such country or territory, to the operation of any
law relating to insolvency, bankruptcy or liquidation;
or
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22.1.13
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Cessation of business:
the Borrower suspends or ceases or threatens to suspend or cease to carry
on its business; or
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9
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22.1.14
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Seizure: all or a
material part of the undertaking, assets, rights or revenues of, or shares
or other ownership interests in, the Borrower are seized, nationalised,
expropriated or compulsorily acquired by or under the authority of any
government; or
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22.1.15
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Disposals: the Borrower
sells, transfers, abandons, lends or otherwise disposes of or ceases to
exercise direct control over any part (being either alone or when
aggregated with all other disposals falling to be taken into account
pursuant to this clause 22.1.15 material in the opinion of the Banks
in relation to the undertakings, assets, rights and revenues of the
Borrower’s Group) of its present or future undertakings, assets, rights or
revenues (otherwise than by transfers, sales or disposals for full
consideration in the ordinary course of trading) whether by one or a
series of transactions related or not; or
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22.1.16
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Invalidity: this
Facility Letter shall at any time and for any reason become invalid or
unenforceable or otherwise cease to remain in full force and effect, or if
the validity or enforceability of this Facility Letter shall at any time
and for any reason be contested by the Borrower, or if the Borrower shall
deny that it has any, or any further, liability thereunder;
or
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22.1.17
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Unlawfulness: it becomes
impossible or unlawful at any time for the Borrower, to fulfil any of the
covenants and obligations expressed to be assumed by it in this Facility
Letter or for the Lender to exercise the rights or any of them vested in
them under this Facility Letter or otherwise; or
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22.1.18
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Repudiation: the
Borrower repudiates this Facility Letter or does or causes or permits to
be done any act or thing evidencing an intention to repudiate this
Facility Letter; or
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22.1.19
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Encumbrances
enforceable: any Encumbrance (other than Permitted Liens) in
respect of any of the property (or part thereof) of the Borrower becomes
enforceable; or
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22.1.20
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Material adverse change:
there occurs, in the opinion of the Lender, a material adverse change in
the financial condition of the Borrower as described by the Borrower to
the Lender in the negotiation of this Facility Letter;
or
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22.1.21
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Loan Agreement default:
an Event of Default (as such term is defined therein) occurs under the
Loan Agreement; or
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10
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22.1.22
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Material events: any
other event occurs or circumstance arises which, in the opinion of the
Lender, is likely materially and adversely to affect the
ability of the Borrower to perform all or any of its obligations under or
otherwise to comply with the terms this facility
letter.
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22.2
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Acceleration If
an Event of Default is continuing the Lender may by notice to the
Borrower:
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22.2.1
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declare
that the Loan, together with accrued interest, and all other amounts
accrued or outstanding under this Facility Letter are immediately due and
payable, whereupon they shall become immediately due and payable;
and/or
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22.2.2
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declare
that the Loan is payable on demand, whereupon it shall immediately become
payable on demand by the Lender.
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23.
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Notices
and Correspondence
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All
notices and correspondence to the Lender shall (unless notified
to the contrary) be sent to HSH Nordbank AG, Attn: Shipping, Greek
Clients, Gerhart-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, (Fax No:
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇).
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All
notices and correspondence to the Borrower shall (unless notified to the
contrary) be sent to Omega Navigation Enterprises, Inc., ▇▇,
▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Fax No: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
/2542).
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24.
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Counterparts
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This
Facility Letter may be executed in any number of counterparts each of
which shall be original but which shall together constitute the same
instrument.
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25.
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Governing
Law and Jurisdiction
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This
Facility Letter will be governed by and construed in accordance with
English law and for the benefit of the Lender the Borrower hereby submits
to the non-exclusive jurisdiction of the courts of England. The
Borrower hereby irrevocably authorises and appoints ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
at present of Irongate House, Duke’s Place, London EC3A 7HX as its agent
to accept service of any legal proceedings arising out of or in connection
with this Facility Letter.
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11
To
signify your agreement to the above terms and conditions, kindly sign and return
to us the attached copy of this letter.
Yours
faithfully,
HSH
Nordbank AG
Accepted
and signed
this day
of 2007
OMEGA
NAVIGATION ENTERPRISES INC.
By
Attorney-in-Fact
12