Date 2009
Exhibit 99.4
Date 2009
as
Borrower
- and
-
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
- and
-
BANK
OF SCOTLAND PLC.
as Agent,
Mandated Lead Arranger, Underwriter and Security Trustee
- and
-
BANK
OF SCOTLAND PLC
as Swap
Bank
_______________________________________
_______________________________________
relating
to a secured revolving credit facility
of
(originally) up to US$89,000,000
▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇
Piraeus
INDEX
| Clause | Page | ||
|
1
|
INTERPRETATION
|
||
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
||
|
3
|
CONDITIONS
PRECEDENT
|
||
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
||
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE DOCUMENTS
|
||
|
6
|
FURTHER
ASSURANCES
|
||
|
7
|
FEES
AND EXPENSES
|
||
|
8
|
COMMUNICATIONS
|
||
|
9
|
SUPPLEMENTAL
|
||
|
10
|
LAW
AND JURISDICTION
|
||
|
SCHEDULE
1
|
LENDERS
AND CONTRIBUTIONS
|
||
|
SCHEDULE
2
|
REDUCTION
OF LOAN
|
||
|
SCHEDULE
3
|
PART
B FORM OF COMPLIANCE CERTIFICATE
|
||
|
EXECUTION
PAGES
|
|||
THIS AGREEMENT is made on March 2009
BETWEEN
|
(1)
|
PARAGON SHIPPING
INC. as Borrower;
|
|
(2)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1 herein, as Lenders;
|
|
(3)
|
BANK OF SCOTLAND PLC.,
acting through its office at Pentland House, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇ as Agent;
|
|
(4)
|
BANK OF SCOTLAND PLC.,
acting through its office at Pentland House, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇, as Security
Trustee;
|
|
(5)
|
BANK OF SCOTLAND PLC.,
acting through its office at Pentland House, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇, as Mandated Lead
Arranger;
|
|
(6)
|
BANK OF SCOTLAND PLC.,
acting through its office at Pentland House, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇, as Underwriter;
and
|
|
(7)
|
BANK OF
SCOTLAND PLC.,
acting through its office at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
as Swap
Bank.
|
BACKGROUND
|
(A)
|
By
a loan agreement dated 4 December 2007 (as amended and supplemented by a
supplemental agreement dated 20 May 2008, the “Loan Agreement”) and
made between (i) the Borrower, (ii) the Lenders, (iii) the Agent, (iv) the
Security Trustee, (v) the Mandated Lead Arranger, (vi) the Underwriter and
(vii) the Swap Bank, the Lenders agreed to make available to the Borrower
a secured revolving credit facility in an amount of (originally) up to
US$89,000,000, of which an amount of US$80,000,000 is outstanding by way
of principal on the date hereof.
|
|
(B)
|
The
Borrower has requested that the Lenders give their
consent:
|
|
|
(i)
|
to
waive the application of the security cover provisions in clause 15.1 of
the Loan Agreement during the financial quarters ended or, as the case may
be, ending on 31 December 2008, 31 March 2009, 30 April 2009 and 30
September 2009 (the “Waiver
Period”);
|
|
|
(ii)
|
for
the valuation of the Fleet Vessels required pursuant to clauses 12.4(b)
and 12.4(d) of the Loan Agreement to be calculated on the basis of each
Fleet Vessel’s book value during the Waiver
Period;
|
|
|
(iii)
|
to
allow the Borrower to proceed with the purchase of shares in the Borrower
in an amount of up to US$10,000,000 as part of the Borrower’s share
buy-back scheme during the period commencing on the date of this Agreement
and ending on 31 December 2009; and
|
|
|
(iv)
|
to
the payment of dividends in an amount of up to $3,400,000 for each
financial quarter during the Waiver
Period.
|
|
(C)
|
The
Lenders’ consent to the Borrower’s requests referred to in Recital (B) are
subject to the following
conditions:
|
13264942
v4
|
(i)
|
the
reduction/repayment schedule applicable to the Loan pursuant to the Loan
Agreement being amended in the manner set out in Schedule 2 of this
Agreement;
|
|
|
(ii)
|
the
Margin increasing to 1.60 per cent. per annum during the Waiver
Period;
|
|
|
(iii)
|
during
the Waiver Period, there will be available to the Borrower and all the
other members of the Group an amount of not less than $750,000 per Fleet
Vessel; and
|
|
|
(iv)
|
if
any of the Charterparties is terminated or becomes invalid or
unenforceable or is re-negotiated, the Borrower shall not be entitled to
continue to buy back any further of its shares or to declare or pay any
dividends.
|
|
(D)
|
This
Agreement sets out the terms and conditions on which the Creditor Parties
agree, with effect on and from the Effective Date, to amend the Loan
Agreement.
|
IT IS AGREED as
follows:
|
1
|
INTERPRETATION
|
|
1.1
|
Defined
expressions. Words and expressions defined in the Loan
Agreement and the other Finance Documents shall have the same meanings
when used in this Agreement unless the context otherwise
requires.
|
|
1.2
|
Definitions. In
this Agreement, unless the contrary intention
appears:
|
“Charterparties” means the
Initial Charterparty in respect of “CORAL SEAS” and the Second Charterparty, and
in the singular means either of them;
“Effective
Date” means the date on which the conditions precedent in
Clause 3 are satisfied;
“Loan
Agreement” means the loan agreement dated 4 December 2007 (as
amended and supplemented by a supplemental agreement dated 20 May 2008) referred
to in Recital (A);
“Mortgage Addendum” means, in
respect of each Mortgage, an addendum thereto executed or to be executed by the
relevant Owner in favour of the Security Trustee in such form as the Agent may
approve or require and, in the plural, means both of them; and
“Second Charterparty”
means in respect of “GOLDEN SEAS”, a time charterparty dated 6 May 2008 and made
between Canyon I Navigation Corp. and Transfield Shipping Inc. of Panama
providing for the chartering of “GOLDEN SEAS” at a daily hire rate of
$48,000.
|
1.3
|
Application of construction and
interpretation provisions of Loan Agreement. Clauses 1.2
and 1.5 of the Loan Agreement apply, with any necessary modifications, to
this Agreement.
|
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
|
2.1
|
Agreement of the
Lenders. The Lenders agree, subject to and upon the
terms and conditions of this
Agreement:
|
1
|
(a)
|
to
waive the application of the security cover provisions set out in clause
15.1 of the Loan Agreement during the Waiver
Period;
|
|
(b)
|
to
calculate the market value of the Fleet Vessels for the purposes of
clauses 12.4(b) and 12.4(d) of the Loan Agreement by reference to the book
values of the Fleet Vessels during the Waiver
Period;
|
|
(c)
|
to
waive clause 12.3(c) of the Loan Agreement and allow the Borrower to
proceed with a share buy-back scheme and buy back shares in the Borrower
of up to $10,000,000 in aggregate during the period commencing on the date
of this Agreement and ending on 31 December 2009;
and
|
|
(d)
|
to
approve the declaration or payment of dividends in an amount of up to
$3,400,000 for each financial quarter during the Waiver
Period.
|
|
2.2
|
Agreement of the Creditor
Parties. The Creditor Parties agree, subject to and upon
the terms and conditions of this Agreement, to the consequential amendment
of the Loan Agreement and the other Finance Documents in connection with
the matters referred to in Clause
2.1.
|
|
2.3
|
Effective Date. The
agreement of the Lenders and the other Creditor Parties contained in
Clauses 2.1 and 2.2 shall have effect on and from the Effective
Date.
|
|
3
|
CONDITIONS
PRECEDENT
|
|
3.1
|
General. The
agreement of the Lenders and the other Creditor Parties contained in
Clauses 2.1 and 2.2 is subject to the fulfilment of the conditions
precedent in Clause 3.2.
|
|
3.2
|
Conditions
precedent. The conditions referred to in Clause 3.1 are
that the Agent shall have received the following documents and evidence in
all respects in form and substance satisfactory to the Agent and its
lawyers on or before the Effective
Date:
|
|
(a)
|
documents
of the kind specified in paragraphs 3, 4 and 5 of Schedule 4, Part A to
the Loan Agreement in relation to the Borrower and each Owner in
connection with their execution of this Agreement and the Mortgage
Addenda, updated with appropriate modifications to refer to this
Agreement;
|
|
(b)
|
an
original of this Agreement duly executed by the parties to it and
counter-signed by each of the
Owners;
|
|
(c)
|
receipt
of an original of each Mortgage Addendum duly signed by the relevant Owner
and evidence satisfactory to the Agent and its lawyers that the same has
been registered as a valid addendum to the applicable Mortgage in
accordance with the laws of
Liberia;
|
|
(d)
|
evidence
that there is available to the Borrower and all the other members of the
Group an amount of not less than $750,000 per Fleet Vessel (excluding, for
the avoidance of doubt, any amount standing to the credit of the Retention
Account which has been transferred thereto in accordance with clause 18.2
of the Loan Agreement or any other restricted account) in Liquid Assets of
which an amount of at least $750,000 is standing to the credit of each
Earnings Account;
|
|
(e)
|
a
copy of the Second Charterparty duly executed by the parties thereto and
evidence satisfactory to the Agent and its lawyers that each Ship is
operating under the Charterparty subject to that
Ship;
|
2
|
(f)
|
favourable
opinions from lawyers appointed by the Agent on such matters concerning
the laws of ▇▇▇▇▇▇▇▇ Islands and Liberia and such other relevant
jurisdictions as the Agent may
require;
|
|
(g)
|
evidence
that the fee referred to in Clause 7 of this Agreement has been received
in full by the Agent; and
|
|
(h)
|
any
other document or evidence as the Agent may request in writing from the
Borrower.
|
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
|
4.1
|
Repetition of Loan Agreement
representations and warranties. The Borrower represents
and warrants to the Creditor Parties that the representations and
warranties in clause 10 of the Loan Agreement remain true and not
misleading if repeated on the date of this
Agreement.
|
|
4.2
|
Repetition of Finance Document
representations and warranties. The Borrower and each of
the other Security Parties represents and warrants to the Creditor Parties
that the representations and warranties in the Finance Documents (other
than the Loan Agreement) to which it is a party remain true and not
misleading if repeated on the date of this
Agreement.
|
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE
DOCUMENTS
|
|
5.1
|
Specific amendments to Loan
Agreement. With effect on and from the Effective Date
the Loan Agreement shall be amended as
follows:
|
|
(a)
|
by
adding the following definitions in Clause 1.1
thereof:
|
““Mortgage Addendum” means, in
respect of each Mortgage, an addendum thereto executed or to be executed by the
relevant Owner in favour of the Security Trustee in such form as the Agent may
approve or require and, in the plural, means both of them;”;
““Net Worth” means
Paid-Up Capital plus General Reserves plus Retained Earnings;”; and
““Waiver Period” means the
period commencing on 1 October 2008 and ending on 30 September
2009;”;
|
(b)
|
by
deleting the definition of “Leverage Ratio” in Clause 1.1 thereof in its
entirety and substituting the same
with:
|
|
|
““Leverage
Ratio” means, the ratio (expressed as a percentage)
of:
|
|
|
(a)
|
at
any relevant time during the Waiver
Period:
|
|
|
(i)
|
Total
Indebtedness; to
|
|
|
(ii)
|
the
aggregate of Total Indebtedness and Net Worth;
and
|
|
|
(b)
|
at
all other times:
|
|
|
(i)
|
Total
Indebtedness; to
|
3
|
|
(ii)
|
Total
Capitalization;”;
|
|
(c)
|
by
deleting the definition of “Margin” in Clause 1.1 thereof in its entirety
and substituting the same with:
|
““Margin” means:
|
|
(a)
|
1.60
per cent. per annum, during the Waiver Period;
and
|
|
|
(b)
|
at
all other times:
|
|
|
(i)
|
at
any time when the Leverage Ratio is above 55 per cent., 1.30 per cent. per
annum; and
|
|
|
(ii)
|
at
any time when the Leverage Ratio is equal to, or less than, 55 per cent.,
1.15 per cent. per annum;”;
|
|
(d)
|
by
deleting the definition of “Market Value” in Clause 1.1 thereof in its
entirety and substituting the same
with:
|
““Market Value” means in
relation to each Ship and each Fleet Vessel:
|
|
(a)
|
during
the Waiver Period for the purposes of Clauses 12.4(b) and 12.4(d) and
during the period between 1 October 2009 and 31 December 2009 for the
purposes of Clause 15.1, the book value of that Ship or Fleet Vessel;
and
|
|
|
(b)
|
|
|
(i)
|
for
the purposes of all Clauses other than Clauses 12.4(b) and 12.4(d);
and
|
|
|
(ii)
|
at
all times after the Waiver Period for the purposes of Clauses 12.4(b) and
12.4(d),
|
the
market value thereof calculated in accordance with Clause 15.4;”;
|
(e)
|
by
adding at the end of Clause 12.3(b) thereof the words “subject to such
dividend not exceeding $3,400,000 in any financial quarter during the
Waiver Period”;
|
|
(f)
|
by
adding at the end of Clause 12.3(c) thereof the
words:
|
|
|
“save
that the Borrower shall be entitled during the period commencing on 13
March 2009 and ending on 31 December 2009 (inclusive) to buy back shares
in the Borrower having a value of up to $10,000,000 in aggregate as part
of the Borrower’s share buy-back scheme (with the Borrower entitled to
approach the Agent at any time on or after 30 June 2009 to vary the share
buy-back scheme, such variation may be agreed by the Agent acting with the
authorisation of the Majority Lenders (acting in their sole and absolute
discretion))”;
|
|
(g)
|
by
adding a “hanging” paragraph at the end of Clause 12.3 thereof as
follows:
|
|
|
“Provided that if, during
the Waiver Period, any of the Charterparties is terminated or becomes
invalid or unenforceable or otherwise ceases to be in full force and
effect for any reason prior to its stated termination or is re-negotiated,
the Borrower shall not be entitled at any time thereafter to declare or
pay any dividend pursuant to paragraph (b) above or to buy back any of its
shares pursuant to paragraph (c)
above.”;
|
|
(h)
|
by
adding at the beginning of Clause 12.4(b) thereof the following
words:
|
4
|
“(i)
|
during
the Waiver Period, the Net Worth of the Group and (ii) at all other
times,”;
|
|
(i)
|
by
deleting Clause 12.4(c) thereof in its entirety and substituting the same
with:
|
|
|
“(c)
|
there
is available to the Borrower and all the other members of the Group an
amount of not less than the Minimum Amount per Fleet Vessel (excluding,
for the avoidance of doubt, any amount standing to the credit of the
Retention Account which has been transferred thereto in accordance with
Clause 18.2 or any other restricted account) in Liquid Assets of which,
all amounts in respect of the Ships, shall be held in the Earnings
Accounts.
|
In this
Clause 12.4(c) “Minimum
Amount” means during (i) the Waiver Period, $750,000 and (ii) at any
other time, $500,000;”;
|
(j)
|
by
adding at the end of Clause 12.5 thereof the
following:
|
|
|
“The
Borrower will deliver to the Agent a Compliance Certificate (i) in the
form set out in Part B of Schedule 6 in respect of each financial quarter
falling within the Waiver Period and (ii) in the form set out in Part A of
Schedule 6 in respect of the financial quarter ending on 31 December 2009
and for each subsequent financial quarter. For the purposes of
the financial quarter ending on 31 December 2009 the Market
Value of the Ships and each other Fleet Vessel shall be determined on the
basis of valuations dated 4 January 2010 (or such later date as the Agent
acting on the instructions of the Majority Lenders, may
agree).”;
|
|
(k)
|
by
amending the existing heading in Schedule 6 to the Loan Agreement to read
“Part A - Form of Compliance Certificate (to be used except during Waiver
Period)” and adding at the end of Schedule 6 (as a new Part B to that
Schedule) the form of Compliance Certificate set out in Schedule 3 to this
Agreement; and
|
|
(l)
|
by
deleting Schedule 9 to the Loan Agreement in its entirety and replacing
the same with Schedule 2 to this
Agreement.
|
|
5.2
|
Amendments to Finance
Documents. With effect on and from the Effective Date
each of the Finance Documents other than the Loan Agreement shall be, and
shall be deemed by this Agreement to have been, amended as
follows:
|
|
(a)
|
the
definition of, and references throughout each of the Finance Documents to,
the Loan Agreement and any of the other Finance Documents shall be
construed as if the same referred to the Loan Agreement and those Finance
Documents as amended and supplemented by this
Agreement;
|
|
(b)
|
by
construing all references in the Loan Agreement and in the Finance
Documents to a “Mortgage” as references to that Mortgage as amended and
supplemented by the Mortgage Addendum applicable thereto;
and
|
|
(c)
|
by
construing references throughout each of the Finance Documents to “this
Agreement”, “this Deed”, hereunder and other like expressions as if the
same referred to such Finance Documents as amended and supplemented by
this Agreement.
|
|
5.3
|
Finance Documents to remain in
full force and effect. The Finance Documents shall
remain in full force and effect as amended and supplemented
by:
|
|
(a)
|
the
amendments to the Finance Documents contained or referred to in Clauses
5.1 and 5.2; and
|
5
|
(b)
|
such
further or consequential modifications as may be necessary to give full
effect to the terms of this
Agreement.
|
|
6
|
FURTHER
ASSURANCES
|
|
6.1
|
▇▇▇▇▇▇▇▇’s and each Security
Party’s obligation to execute further documents etc. The Borrower
and each Security Party shall:
|
|
(a)
|
execute
and deliver to the Security Trustee (or as it may direct) any assignment,
mortgage, power of attorney, proxy or other document, governed by the law
of England or such other country as the Security Trustee may, in any
particular case, specify;
|
|
(b)
|
effect
any registration or notarisation, give any notice or take any other
step,
|
|
|
which
the Agent may, by notice to the Borrower, specify for any of the purposes
described in Clause 6.2 or for any similar or related
purpose.
|
|
6.2
|
Purposes of further
assurances. Those purposes
are:
|
|
(a)
|
validly
and effectively to create any Security Interest or right of any kind which
the Security Trustee intended should be created by or pursuant to the Loan
Agreement or any other Finance Document, each as amended and supplemented
by this Agreement, and
|
|
(b)
|
implementing
the terms and provisions of this
Agreement.
|
|
6.3
|
Terms of further
assurances. The Security Trustee may specify the terms
of any document to be executed by the Borrower or any Security Party under
Clause 6.1, and those terms may include any covenants, powers and
provisions which the Security Trustee considers appropriate to protect its
interests.
|
|
6.4
|
Obligation to comply with
notice. The Borrower or any Security Party shall comply
with a notice under Clause 6.1 by the date specified in the
notice.
|
|
7
|
FEES
AND EXPENSES
|
|
7.1
|
Fee. On the
date of this Agreement the Borrower shall pay to the Agent for the account
of the Lenders, a non-refundable work fee of $30,000, which shall be
distributed by the Agent equally to each of the
Lenders.
|
|
7.2
|
Expenses. The
provisions of clause 20 (fees and expenses) of the Loan Agreement shall
apply to this Agreement as if they were expressly incorporated in this
Agreement with any necessary
modifications.
|
|
8
|
COMMUNICATIONS
|
|
(a)
|
General. The
provisions of clause 28 (notices) of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.
|
|
9
|
SUPPLEMENTAL
|
|
9.1
|
Counterparts. This
Agreement may be executed in any number of
counterparts.
|
|
9.2
|
Third Party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
6
|
10
|
LAW
AND JURISDICTION
|
|
10.1
|
Governing
law. This Agreement shall be governed by and construed
in accordance with English law.
|
|
10.2
|
Incorporation of the Loan
Agreement provisions. The provisions of clause 30 (law
and jurisdiction) of the Loan Agreement, as amended and supplemented by
this Agreement, shall apply to this Agreement as if they were expressly
incorporated in this Agreement with any necessary
modifications.
|
THIS AGREEMENT has been duly
executed as a Deed on the date stated at the beginning of this
Agreement.
7
SCHEDULE
1
LENDERS
AND CONTRIBUTIONS
|
Lender
|
Lending
Office
|
Contribution
(US
Dollars)
|
|
Bank
of Scotland plc.
|
Pentland
House
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
|
35,976,331.36
|
|
Dexia
Bank Belgium SA/▇▇
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇-▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
8,994,082.84
|
|
Natixis
|
68-▇▇
▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
|
35,029,585.80
|
8
SCHEDULE
2
REDUCTION
OF LOAN
|
Reduction
Date
(months
after
Reduction
Start Date)
|
Amount
of Reduction
($)
|
Maximum
Available
Amount
of Loan
($)
|
|
|
0
|
0
|
89,000,000
|
|
|
1.
|
3
|
2,250,000
|
86,750,000
|
|
2.
|
6
|
2,250,000
|
84,500,000
|
|
3.
|
9
|
2,250,000
|
82,250,000
|
|
4.
|
12
|
2,250,000
|
80,000,000
|
|
5.
|
15
|
2,750,000
|
77,250,000
|
|
6.
|
18
|
2,750,000
|
74,500,000
|
|
7.
|
21
|
2,750,000
|
71,750,000
|
|
8.
|
24
|
2,750,000
|
69,000,000
|
|
9.
|
27
|
2,250,000
|
66,750,000
|
|
10.
|
30
|
2,250,000
|
64,500,000
|
|
11.
|
33
|
2,250,000
|
62,250,000
|
|
12.
|
36
|
2,250,000
|
60,000,000
|
|
13.
|
39
|
1,000,000
|
59,000,000
|
|
14.
|
42
|
1,000,000
|
58,000,000
|
|
15.
|
45
|
1,000,000
|
57,000,000
|
|
16.
|
48
|
1,000,000
|
56,000,000
|
|
17.
|
51
|
1,000,000
|
55,000,000
|
|
18.
|
54
|
1,000,000
|
54,000,000
|
|
19.
|
57
|
1,000,000
|
53,000,000
|
|
20.
|
60
|
1,000,000
|
52,000,000
|
|
21.
|
60
|
52,000,000
|
0
|
9
SCHEDULE
3
PART
B
FORM
OF COMPLIANCE CERTIFICATE
(to be
used during Waiver Period)
To: Bank
of Scotland Plc.
Pentland
House
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Edinburgh
EH12 9DJ
Scotland
[l] 200[l]
Dear
Sirs,
We refer
to a loan agreement dated 4 December 2007 (as amended and supplemented by
supplemental agreements dated respectively 20 May 2008 and [l], the “Loan Agreement”) made between
(amongst others) yourselves and ourselves in relation to a revolving credit
facility of up to $89,000,000.
Words and
expressions defined in the Loan Agreement shall have the same meaning when used
in this compliance certificate.
We
enclose with this certificate a copy of the [audited]/[unaudited] consolidated
accounts for the Group for the [Financial Year] [3-month period] ended [l]. The
accounts (i) have been prepared in accordance with all applicable laws and GAAP
all consistently applied, (ii) give a true and fair view of the state of affairs
of the Group at the date of the accounts and of its profit for the period to
which the accounts relate and (iii) fully disclose or provide for all
significant liabilities of the Group.
The
Borrower represents that no Event of Default or Potential Event of Default has
occurred as at the date of this certificate [except for the following matter or
event [set out all material
details of matter or event]]. In addition as of [l], the Borrower confirms
compliance with the financial covenants set out in Clause 12.4 of the Loan
Agreement for the 3 months ending as of the date to which the enclosed accounts
are prepared.
We now
certify that, as at [l]:
|
(a)
|
the
ratio of EBITDA to Interest Expenses is [l]:[l];
|
|
(b)
|
the
Net Worth of the Group is $[l];
|
|
(c)
|
Liquid
Assets available to the Group are $[l] in aggregate of
which an aggregate amount of $[l] is standing to
the credit of the Earnings
Accounts;
|
|
(d)
|
the
Leverage Ratio is [l]:[l];
and
|
|
(e)
|
the
Working Capital of the Group is [l].
|
This
certificate shall be governed by, and construed in accordance with, English
law.
______________________________
[l]
Chief
Financial Officer of
10
|
THE
BORROWERS
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
)
|
|
|
THE
LENDERS
|
|
|
LENDERS
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
BANK
OF SCOTLAND PLC.
|
)
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
DEXIA
BANK
|
)
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
NATIXIS
|
)
|
|
THE
SWAP BANK
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
BANK OF SCOTLAND
PLC.
|
)
|
|
AGENT
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
BANK
OF SCOTLAND PLC.
|
)
|
11
|
SECURITY
TRUSTEE
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
BANK
OF SCOTLAND PLC.
|
)
|
|
MANDATED
LEAD ARRANGER
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
BANK
OF SCOTLAND PLC.
|
)
|
|
UNDERWRITER
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
BANK
OF SCOTLAND PLC.
|
)
|
|
Witness
to all the
|
)
|
|
above
signatures
|
)
|
|
Name:
|
|
|
Address:
|
12
COUNTERSIGNED this
day of March 2009 for and on behalf of the
following Security Parties each of which, by its execution hereof, confirms and
acknowledges that it has read and understood the terms and conditions of this
supplemental letter, that it agrees in all respects to the same and that the
Finance Documents to which it is a party shall remain in full force and effect
and shall continue to stand as security for the obligations of the Borrower
under the Loan Agreement.
__________________________________
__________________________________
for and
on behalf of for and on behalf of
CANYON
IIMPERATOR I MARITIME COMPANY
NAVIGATION
CORP.
13