EXHIBIT 4.15
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Temperley Execution Copy
Dated 19 February 2002
HAMBURGISCHE LANDESBANK-GIROZENTRALE-
and
AMBERMAR LIMITED
LOAN AGREEMENT
for a USD20,200,000 loan facility
in respect of Hull No. 1071
at Daedong Shipyard
(tbn "AMBERMAR")
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
JEF/90035051
INDEX
CLAUSE SUBJECT PAGE NO.
------ ------- --------
1.PURPOSE, DEFINITIONS AND CONSTRUCTION.....................................................................1
2.THE BANK'S COMMITMENT.....................................................................................9
3.USE OF PROCEEDS...........................................................................................9
4.DRAWDOWN..................................................................................................9
5.INTEREST..................................................................................................9
6.DEFAULT INTEREST.........................................................................................11
7.SUBSTITUTE BASIS OF FUNDING FOR THE LOAN.................................................................11
8.REPAYMENT AND PREPAYMENT.................................................................................12
▇.▇▇▇▇▇▇▇▇.................................................................................................13
10. FEES...................................................................................................14
11.PAYMENT AND ACCOUNTS....................................................................................14
12.REPRESENTATIONS AND WARRANTIES..........................................................................16
13.COVENANTS AND UNDERTAKINGS..............................................................................18
▇▇.▇▇▇▇▇▇ OF DEFAULT.......................................................................................20
15.YIELD PROTECTION, ILLEGALITY AND FORCE MAJEURE..........................................................23
16.TAXES...................................................................................................24
17.BENEFIT OF AGREEMENT....................................................................................25
18.EXPENSES AND INDEMNITIES................................................................................25
19.SET-OFF AND COMBINATION OF ACCOUNTS.....................................................................26
20.MISCELLANEOUS...........................................................................................27
21.NOTICES.................................................................................................27
22.GOVERNING LAW, JURISDICTION AND PROCESS.................................................................28
SCHEDULE 1 ................................................................................................29
SCHEDULE 2 ................................................................................................32
EXECUTION PAGE ............................................................................................33
THIS
LOAN AGREEMENT dated the 19th day of February 2002 is made by and
between: -
(1) HAMBURGISCHE LANDESBANK-GIROZENTRALE- and
(2) AMBERMAR LIMITED.
IT IS AGREED as follows:-
1. PURPOSE, DEFINITIONS AND CONSTRUCTION
1.1 This Agreement sets forth the terms and conditions upon which the Bank
will make available to the Borrower from the Lending Office (as
hereinafter defined) a secured floating interest rate term loan of
twenty million two hundred thousand Dollars (USD20,200,000) to part
finance the purchase of the Ship hereinafter defined.
1.2 In this Agreement the following words and expressions shall have the
following meanings:-
"Advance"
the amount drawn down (or, as the context may require, to be drawn
down) by the Borrower under the Facility;
"Agreement"
this agreement including its Schedules;
"Applicable Rate"
nought point nine three seven five per cent (0.9375%) per annum;
"Assignment of Earnings"
the first priority assignment of the Earnings to be entered into by the
Borrower in favour of the Bank, such assignment to be in form and
substance satisfactory to the Bank;
"Assignment of Insurances"
the first priority assignment of the Insurances and all Requisition
Compensation to be entered into by the Borrower in favour of the Bank,
such assignment to be in form and substance satisfactory to the Bank;
"Bank"
Hamburgische Landesbank-Girozentrale-, a public law credit institution
established under the laws of the Federal Republic of Germany having
its head office at ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and acting through the Lending Office;
"Banking Day"
a day (other than Saturday or Sunday) on which commercial banks and
foreign exchange markets are open for domestic and foreign exchange
business in London and Hamburg and, for the purpose of ascertaining
when payments are to be made under this Agreement, also in New York
City;
"Borrowed Money"
any amount actually or contingently payable by an entity as a result of
any transaction entered into to enable such entity to finance its
operations, working or longer term capital requirements, debts,
receivables, inventory or any other aspect of its business;
"Borrower"
Ambermar Limited, a company organised and existing under the laws of
the Republic of Liberia having its registered office at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
"Break Costs"
the aggregate amount of all losses, premiums, penalties, costs and
expenses whatsoever incurred by the Bank at any time, either:-
(A) as a result of any repayment of the Loan or any part thereof
otherwise than in accordance with Clause 8 whether on a
voluntary or involuntary basis or otherwise howsoever; or
(B) as a result of the Borrower for any reason failing or being
incapable of drawing the Loan or any part thereof after
serving a Utilisation Request upon the Bank,
in liquidating or reemploying fixed deposits acquired to maintain the
Loan or any part thereof as certified by the Bank to the Borrower on
each occasion on which they may arise;
"Builder"
Daedong Shipyard Co. Ltd., a company organised and existing under the
laws of South Korea having its principal office at ▇▇▇, ▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇;
"Building Contract"
the agreement dated 15 May 2000 made between the Seller and the Builder
for the construction, launching and equipping of a 37,700 d.w.t.
product carrier designated as Builder's hull number 1071;
"certified copy"
in relation to any document delivered or issued by or on behalf of any
company, a copy of such document certified as a true and complete copy
of the original by any of the directors or the secretary or assistant
secretary for the time being of such company or such company's
solicitors or counsel;
"Closing Date"
31 March 2002 or such later date as the Bank may agree in writing in
its sole and unfettered discretion (without having any legal or other
commitment of any kind to that effect);
"Compulsory Acquisition"
requisition for title or other compulsory acquisition of the Ship
(otherwise than by requisition for hire), capture, seizure, arrest,
detention or confiscation of the Ship by or on behalf of any government
or governmental authority or agency or by persons acting or purporting
to act on behalf of any such government or governmental authority or
agency unless the Ship be released from such compulsory acquisition,
capture, seizure, arrest, detention or confiscation within thirty (30)
days of the occurrence thereof,
"Conditions Precedent"
the conditions set forth in Schedule 1;
"Deed of Covenants"
the deed of covenants collateral to the Mortgage to be entered into by
the Borrower in favour of the Bank, such deed to be in form and
substance satisfactory to the Bank;
"Delivery Date"
the date on which the Ship is delivered to and accepted by the Borrower
under the MOA;
"Dollars" and "USD"
United States Dollars, being the legal currency at any relevant time
hereunder of the United States of America and in respect of all
payments under the Security Documents immediately available funds or
such other United States Dollars funds as shall at any such relevant
time be customary for settlement of international banking transactions
in New York on a same day basis;
"Drawdown Date"
the date on which the Advance is drawn down;
"Earnings"
all moneys whatsoever due or to become due to the Borrower at any time
during the Loan Period arising out of the use or operation of the Ship
including (but without prejudice to the generality of the foregoing)
all freight, hire and passage moneys, compensation payable to the
Borrower in the event of requisition of the Ship for hire, remuneration
for salvage and towage services, demurrage and detention moneys and
damages for breach (or payments for variation or termination) of any
charterparty or any other contract of employment of the Ship;
"Earnings Account"
the Dollar current account number ▇▇▇ ▇▇▇ ▇▇▇▇ designated "AMBERMAR-
Earnings Account" held by the Borrower with the Bank at its London
branch for the receipt of the Earnings as specified in Clause 11. 1 or
such other account or accounts as may be established for this purpose
with the prior written consent of the Bank;
"Encumbrance"
any mortgage, assignment, transfer by way of security, charge, pledge,
lien, title retention, security interest, hypothecation, trust
arrangement or other encumbrance securing or any right conferring a
priority of payment in respect of any obligation of any person;
"Equivalent Amount"
in relation to an amount of one currency (the "first amount") such
amount of another currency which, on any relevant date, the Bank
certifies it could have purchased by exchanging the first amount
therefor for immediate delivery at the rate of exchange between such
currencies certified by the Bank to be the rate at which it would have
been able, at the opening of business on such date, to effect such
transaction;
"Event of Default"
any of the events or circumstances set forth in Clause 14;
"Execution Date"
the date of execution of this Agreement by the parties hereto;
"Facility"
the loan facility referred to in Clause 2. 1;
"Insurances"
all policies and contracts of insurance (which expression includes all
entries of the Ship in any protection and indemnity association or any
war risks association and, where the context so admits, any reinsurance
of any such policies and contracts of insurance) which are from time to
time during the Loan Period taken out or entered into by or on behalf
of the Borrower in respect of the Ship or her increased value or
Earnings or otherwise howsoever in connection therewith and, where the
context so admits, all benefits thereof including all claims of
whatsoever nature and returns of premium thereunder;
"Interest Payment Date(s)"
the last day of each Interest Period and, if an Interest Period is
longer than six (6) months' duration, the date falling at the end of
each successive period of six (6) months during such Interest Period
starting from its commencement;
"Interest Period"
each period fixed in accordance with the provisions of Clause 5.2 as
the period for the calculation of the Interest Rate in respect of the
Loan or any relevant part thereof;
"Interest Rate"
the rate of interest payable in respect of the Loan or any part thereof
(as the context may require) ascertained in accordance with the
provisions of Clause 5.3;
"Lending Office"
the Bank's office at ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
or such other office as the Bank shall from time to time select and
notify to the Borrower in writing;
"Loan"
a loan of twenty million two hundred thousand United States Dollars
(USD20,200,000) to be advanced by the Bank to the Borrower hereunder
or, where the context so admits, the principal amount of the Advance
which has been drawn down hereunder and which from time to time remains
outstanding;
"Loan Period"
the period from the Drawdown Date to the date upon which all amounts
due or to become due actually or contingently to the Bank under the
Security Documents have been finally and irrevocably paid and/or repaid
in full;
"MOA"
means the memorandum of agreement dated 18 July 2001 made between the
Seller as seller and ▇▇▇▇▇▇▇ including a nomination letter thereto
whereby ▇▇▇▇▇▇▇ will or has nominated the Borrower as buyer, in respect
of the Ship as the same may from time to time be amended, supplemented
or assigned;
"month"
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month save that,
where any such period would otherwise end on a day which is not a
Banking Day, it shall end on the next Banking Day unless that date
falls in the calendar month succeeding that in which it would otherwise
have ended, in which case it shall end on the preceding Banking Day
provided that, if a period starts on the last Banking Day in a calendar
month or if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last Banking Day
in that later month;
"Mortgage"
the first statutory Cypriot mortgage on the Ship to be entered into and
registered by the Borrower in favour of the Bank, in form and substance
satisfactory to the Bank;
"Notice Address"
Status Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇-▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
(telefax no. + 301 9670 150) or such other address and telefax number
as is notified by the Borrower in writing to the Bank;
"Obligors"
the Borrower and any other person or company who from time to time
during the Loan Period is liable or provides security to the Bank for
payment of the Outstanding Indebtedness or any part thereof;
"Outstanding Indebtedness"
the aggregate of the Loan, accrued interest thereon and any other
moneys whatsoever actually or contingently payable to the Bank under or
pursuant to the Security Documents and any of them;
"Permitted Encumbrances"
(A) any Encumbrances created by or pursuant to the Security
Documents;
(B) any Encumbrances on the Ship relating to current crew's wages;
(C) any Encumbrances on the Ship relating to a claim the liability
for which is covered by the Insurances and has been accepted
by the Ship's insurers;
(D) any Encumbrances on the Ship relating to a claim against which
the Borrower or its insurers or any other person has provided
a first class bank guarantee or other counter-security
acceptable to the Bank to the claimant securing the full value
of the claim;
"Possible Event of Default"
any event which, with the giving of notice or lapse of time would
constitute an Event of Default or any other event which with the
fulfilment of any other condition clearly identifiable by the Bank
would constitute an Event of Default;
"Process Address"
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (or such other address in
England
as the Process Agent may from time to time notify in writing to the
Bank);
"Process Agent"
▇▇▇▇▇▇▇ Tankers (UK) Limited (or such other person as may be approved
by the Bank in accordance with Clause 22.3);
"Purchase Price"
the sum of thirty million seven hundred and fifty thousand Dollars
(USD30,750,000) payable by the Borrower to the Seller under the MOA;
"Quotation Date"
in relation to any Interest Period, the day on which quotations would
ordinarily be given in the London interbank eurocurrency market for
Dollar deposits for delivery on the first day of that Interest Period;
"Repayment Date"
a date on which any instalment of principal of the Loan becomes due and
payable by the Borrower pursuant to the terms of Clause 8. 1;
"Requisition Compensation"
all moneys or other compensation receivable by the Borrower in the
event of Compulsory Acquisition of the Ship or requisition of the Ship
for hire;
"Security Documents"
this Agreement, the Mortgage, the Deed of Covenants, the Assignment of
Insurances, the Assignment of Earnings and, where the context so
admits, any other securities, guarantees or undertakings whatsoever
which the Borrower has agreed to procure and/or which may be executed
at any time in respect of the Outstanding Indebtedness;
"Seller"
Potomac Shipping Company, a company incorporated under the laws of the
Republic of Liberia, having its registered office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Liberia;
"Ship"
the motor vessel which is the subject of the Building Contract
designated as Builder's hull number 1071 and which upon her delivery to
the Borrower thereunder on the Drawdown Date will be registered in the
name of the Borrower under the laws and flag of Cyprus and named
"AMBERMAR";
"▇▇▇▇▇▇▇"
▇▇▇▇▇▇▇ Shipping Limited, a company organised and existing under the
laws of the Republic of Liberia having its registered office at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
"Subject Documents"
means this Agreement, the other Security Documents, the MOA, the
Building Contract and any and all documents executed or delivered
pursuant to any one or more of these documents;
"subsidiary"
has the meaning ascribed thereto by Section 736 of the Companies ▇▇▇
▇▇▇▇ as amended by Section 144 of the Companies ▇▇▇ ▇▇▇▇;
"Taxes"
all taxes (including, but without limitation, income, ad valorem,
capital gains, value added, service, sales, excise, franchise, stamp,
property or other taxes) levies, imports, duties, charges,
withholdings, assessments, penalties, fines, interest on tax, all
licence and registration fees and any other governmental,
quasi-governmental or official charges wheresoever and by whomsoever
imposed and "Taxation" shall be construed accordingly;
"Total Loss"
actual, constructive or compromised or arranged total loss or
Compulsory Acquisition of the Ship;
"Utilisation Request"
a request executed by the Borrower in the form set forth in Schedule 2;
"Valuation"
a valuation of the Ship in accordance with Clause 13.3 in relation to
the Ship the written valuation thereof expressed in Dollars prepared by
either (i) Galbraiths Ltd., London (ii) ▇. ▇▇▇▇▇▇▇▇ & Co. Ltd., London
(iii) Braemar Shipbrokers Ltd., London (iv) Seascope Shipping Limited,
London or (v) ACM Tankers Ltd. (as the Bank shall nominate on each
occasion on which the same is required), such valuation to be prepared
with or without inspection on the basis of a normal arms-length
charter-free sale (substantially in accordance with terms set forth in
either the 1993 or 1987 Norwegian Sales Form) between a willing seller
and a willing buyer provided that the Borrower may elect not later than
seven (7) days after receiving notice of such first valuation to obtain
a second written valuation prepared by one of the other shipbrokers
referred to above (such valuation to be prepared on the same basis as
the first valuation) in which case the "Valuation" of the Ship shall be
the average of the two written valuations to obtained.
1.3 In this Agreement unless the context otherwise requires:-
(A) clause headings are inserted for convenience of reference only
and shall be ignored in the interpretation of this Agreement;
(B) references to Clauses and Schedules are to be construed as
references to clauses of, and schedules to, this Agreement;
(C) reference to any document (or to any specified provision
thereof) shall be construed as reference to that document or
that provision as amended, varied or novated with the
agreement of all relevant parties whose consent to such
amendment, variation or novation may be required;
(D) references to any party to any document shall include
reference to such party's successors and permitted assigns;
(E) words importing the plural shall include the singular and vice
versa;
(F) reference to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of
persons or any state or any agency thereof; and
(G) references to a company shall include any body corporate.
2. THE BANK'S COMMITMENT
2.1 In reliance upon each of the representations and warranties contained
in Clause 12, induced by the execution and delivery of the Security
Documents and subject always to the terms, covenants and conditions
herein contained, the Bank grants to the Borrower a loan facility of
twenty million two hundred thousand Dollars (USD20,200,000) which shall
be available for drawing in one single amount on or before the Closing
Date.
2.2 No amount shall be available for drawing under the Facility after the
Closing Date.
3. USE OF PROCEEDS
3.1 The Borrower shall apply the proceeds of the Advance in payment to the
Seller of part of the Purchase Price of the Ship under the MOA.
4. DRAWDOWN
4.1 The Loan shall be available for drawing in one single amount for
application in accordance with Clause 3.1 if and provided that:-
(A) all of the relevant Conditions Precedent have been fulfilled
to the Bank's satisfaction;
(B) no Event of Default or Possible Event of Default has occurred
or will result from the drawdown of the Advance;
(C) the Borrower shall have served a Utilisation Request upon the
Bank giving not less than two (2) clear Banking Days' notice
of intended drawdown of the Advance (or such lesser period of
notice as is acceptable to the Bank) on a specific date being
a Banking Day and a date occurring on or before the Closing
Date. Such notice having been given the
Advance shall be drawn subject as aforesaid on the date
requested.
4.2 The Bank may in its sole and unfettered discretion allow the Loan to be
advanced notwithstanding that any Condition Precedent has not been
fulfilled to its satisfaction or any Event of Default or Possible Event
of Default has occurred. In this event the Borrower hereby covenants to
comply with such Condition Precedent or, as the case may be, to remedy
such Event of Default or Possible Event of Default within such period
as the Bank may specify and failure to do so shall be deemed to
constitute the occurrence of an Event of Default.
5. INTEREST
5.1 The Borrower shall pay interest on the Loan or relevant part thereof at
the Interest Rate in arrears on each Interest Payment Date.
5.2 In this Agreement "Interest Period" means each such successive period
commencing on the Drawdown Date and thereafter on the expiry of the
previous such period of one (1), three (3), six (6) or twelve (12)
months' duration as the Borrower may nominate in respect of the Loan by
notice to the Bank not later than about 11:00 a.m. London time two (2)
clear Banking Days prior to the commencement of each such period or of
such alternative duration as the Bank may agree in writing in its sole
and unfettered discretion provided always that:-
(A) if the Borrower fails to select an Interest Period in
accordance with this Clause 5.2 or the Bank certifies that
deposits for the period selected by the Borrower are not
available to it in the ordinary course of business in the
London interbank eurocurrency market to fund the Loan, the
Borrower shall be deemed to have selected an Interest Period
of one (1) month or, at the Bank's sole and unfettered
discretion, such alternative duration as is determined by the
Bank after consultation with the Borrower;
(B) if an Interest Period is selected in respect of the Loan or
part thereof which extends beyond one or more Repayment Dates
the Loan or relevant part thereof shall be divided into two
or, as the case may be, more portions, one or more of such
portions being an amount equal to the amount of the principal
instalment or instalments required to be repaid on the
relevant Repayment Date or Dates pursuant to
Clause 8.1 and having an Interest Period or Periods of such
length as will expire on such date or dates and the Interest
Period relating to the rest of the Loan will be determined in
accordance with the rest of this Clause 5.2;
(C) if an Interest Period would otherwise end on a day which is
not a Banking Day, the Interest Period shall be extended until
the next following Banking Day unless the next following
Banking Day falls in the next calendar month in which case the
Interest Period will be shortened to expire on the preceding
Banking Day;
(D) if an Interest Period commences on the last Banking Day in a
month or if there is no day in the month in which the Interest
Period will end which corresponds numerically to the day on
which it begins, the Interest Period shall end on the last
Banking Day in that month.
5.3 Subject to Clauses 6 and 7, the rate of interest applicable to the Loan
during each Interest Period relating thereto shall be the rate per cent
per annum. (as conclusively determined by the Bank) which is the sum of
the Applicable Rate and the average rate per cent per annum (rounded up
to the nearest one sixteenth of one per cent (1/16%)) at which the Bank
was offered Dollar deposits by prime banks in the London interbank
eurocurrency market for a period equal to such Interest Period and in
an amount comparable to the amount of the Loan (or relevant part) at or
about 11: 00 a.m. London time on the Quotation Date therefor.
5.4 Interest on the Loan shall accrue from day to day and be calculated on
the basis of a year of three hundred and sixty (360) days for the
actual number of days elapsed and the Bank shall promptly notify the
Borrower in writing of the results of each such computation.
6. DEFAULT INTEREST
6.1 If the Borrower delays in payment on the due date of any sum due under
this Agreement or any of the other Security Documents (including
interest thereon) the Borrower shall, without affecting any other
remedy of the Bank, pay interest on such sum from the due date to the
actual date of payment (as well after as before judgment). Such
interest shall accrue on a daily basis and be calculated on the basis
of a year of three hundred and sixty (360) days for the actual number
of days elapsed.
6.2 In respect of any such unpaid sum in connection with the Loan, such
interest shall be charged at the higher of the Interest Rate fixed for
the latest Interest Period and the rate certified by the Bank to the
Borrower from time to time while such delay continues as being the
aggregate of (i) the Applicable Rate plus nought point nine three seven
five per cent (0.9375%) and (ii) the rate per cent per annum at which
the Bank is able to acquire in accordance with its normal practice
deposits in Dollars on a call basis (or for such longer period as the
Bank may in its sole and unfettered discretion select) in the London
interbank eurocurrency market in an amount equivalent to or comparable
with such unpaid sum as at approximately 11:00 a.m. London time on any
relevant day, such interest to be compounded monthly (or at the end of
any other period selected by the Bank, as the case may be) and to be
payable on demand.
7. SUBSTITUTE BASIS OF FUNDING FOR THE LOAN
7.1 Notwithstanding anything to the contrary in this Agreement, if and each
time that prior to the commencement of any Interest Period the Bank
shall have determined in good faith (which determination shall be
conclusive and binding on the parties hereto) that:-
(A) by reason of circumstances affecting the London interbank
eurocurrency market adequate and fair means do not exist for
ascertaining the Interest Rate; or
(B) deposits in Dollars of equal duration to an Interest Period
will not be available to the Bank in the London interbank
eurocurrency market in sufficient amounts in the ordinary
course of business to fund the Loan during such Interest
Period; or
(C) by reason of any material change in applicable law or
regulation or in the interpretation or application thereof
occurring after the Execution Date by the governmental or
quasi governmental or judicial authority or central bank
charged with the administration or interpretation of such law
or regulation or of any material change in national or
international financial or economic conditions, the Bank is or
would be unable to fund or to continue to fund the Loan during
such Interest Period by deposits obtained in the London
interbank eurocurrency market;
then the Bank shall promptly give notice (a "Suspension Notice"),
containing full particulars thereof in reasonable detail to the
Borrower.
7.2 If a Suspension Notice is given by the Bank before the Drawdown Date
then the Bank shall not be obliged to make the Loan or any part thereof
available until notice to the contrary is given by the Bank. During the
period of thirty (30) days from such Suspension Notice, the Bank shall
consult in good faith with the Borrower with a view to agreeing to an
alternative basis for the advance of the Loan or any part thereof. If
such alternative basis is agreed between the Borrower and the Bank, it
shall apply in accordance with its terms.
7.3 If the Loan or any part thereof has been made available before a
Suspension Notice is given by the Bank, during the period of thirty
days (30) from the date of such Suspension Notice, the Bank shall
consult in good faith with the Borrower with a view to agreeing an
alternative basis (in this Agreement referred to as the "Substitute
Basis") for maintaining the Loan provided that, if the Bank acting in
good faith shall be unable to agree an alternative basis with the
Borrower as aforesaid within such thirty (30) day period, the Bank
shall certify a Substitute Basis which shall reflect the cost to the
Bank of funding the Loan from other sources plus the Applicable Rate.
Such Substitute Basis may be retroactive to the beginning of such
Interest Period and may include an alternative method of fixing the
Interest Rate or alternative Interest Periods for the Loan, provided
always that so far as practicable any such Substitute Basis shall be
computed by the Bank in a manner and for periods as similar as possible
to those provided in Clause 5. Each Substitute Basis so agreed by the
Bank and the Borrower or (as the case may be) certified by the Bank
shall be binding upon the Borrower and the Bank and shall be treated as
part of this Agreement.
7.4 So long as any Substitute Basis is in force, the Bank, in consultation
with the Borrower, shall from time to time, but not less often than
monthly, review whether or not the circumstances referred to in Clause
7.1 still prevail with a view to agreeing a return to the normal
provisions of this Agreement.
8. REPAYMENT AND PREPAYMENT
8.1 Save as otherwise provided herein, the Loan shall be repaid by the
Borrower to the Bank over a period of eight (8) years by sixteen (16)
consecutive semi-annual
instalments. The first fifteen (15) instalments shall each be in the
amount of seven hundred thousand Dollars (USD700,000) and the final
instalment shall be in the amount of nine million seven hundred
thousand Dollars (USD9,700,000). The first instalment shall be payable
six (6) months after the Drawdown Date and the rest of the instalments
shall be payable at consecutive six (6) monthly intervals after the due
date for the first instalment except that:-
(A) if any such repayment date would otherwise fall on a day which
is not a Banking Day, the repayment date shall be the next
following Banking Day unless the next following Banking Day
falls in the next calendar month in which case the repayment
date shall be the preceding Banking Day;
last day of an Interest Period or on any other Banking Day subject to
the terms of Clause 8.3.
8.3 No prepayment under Clause 8.2 shall be permitted except on the expiry
of an Interest Period save with the prior written consent of the Bank
and only then upon such terms as the Bank may specify concerning all
relevant Break Costs incurred in connection with any such prepayment.
8.4 Any prepayment of less than the whole of the Loan under this or any
other provision of this Agreement shall be applied (unless expressly
provided otherwise by the Bank) in or towards repayment of the
instalments payable pursuant to the terms of Clause 8.1 in inverse
chronological order of maturity.
8.5 Any notice given by the Borrower under Clause 8.2 shall be irrevocable
and shall oblige the Borrower to pay to the Bank the amount therein
stated on the date therein stated. No amount prepaid may be redrawn.
Prepayments under this Agreement shall be made together with accrued
interest thereon.
8.6 If the Ship is or becomes a Total Loss, the Borrower shall prepay the
whole of the Loan forthwith upon receipt of the proceeds of the
Insurances or the Requisition Compensation relating thereto (as the
case may be) except that if either:-
(A) such proceeds of the Insurances or Requisition Compensation
(as the case may be) are not received by the Bank as assignee
thereof within one hundred and eighty days of the occurrence
of the Total Loss; or
(B) the Bank has reasonable grounds to believe that such proceeds
will not be so received within one hundred and eighty days
then the Borrower shall be obliged instead to prepay the whole of the
Loan forthwith upon written notice from the Bank requiring it to do so.
9. SECURITY
9.1 In addition to the charges, covenants and undertakings herein
contained, the Borrower shall execute and deliver or, as the case may
be, procure the execution and delivery of the rest of the Security
Documents in favour of the Bank as security for repayment of the Loan,
payment of interest thereon and the performance of all obligations
whatsoever hereunder of the Borrower.
9.2 It is hereby expressly declared and agreed that any security created by
any provision of this Agreement and/or any of the other Security
Documents shall be held by the Bank as a continuing security for the
payment of the Outstanding Indebtedness in whatever currency or
currencies the same may from time to time be denominated and that the
security so created shall not be satisfied by any intermediate payment
or satisfaction of any part of the amounts hereby and thereby secured
and that the security so created shall be in addition to and shall not
in any way prejudice or affect, or be prejudiced or affected by, any
collateral or other security now or hereafter held by the Bank for all
or any part of the moneys hereby and thereby secured and that every
power and remedy given to the Bank hereunder and under the other
Security Documents shall be an addition to, and not a limitation of,
any and every other power whatever currency or currencies the same may
from time to time be denominated and that the security so created shall
not be satisfied by any intermediate payment or satisfaction of any
part of the amounts hereby and thereby secured and that the security so
created shall be in addition to and shall not in any way prejudice or
affect, or be prejudiced or affected by, any collateral or other
security now or hereafter held by the Bank for all or any part of the
moneys hereby and thereby secured and that every power and remedy given
to the Bank hereunder and under the other Security Documents shall be
an addition to, and not a limitation of, any and every other power or
remedy vested in the Bank under any of the other Security Documents and
that all the powers so vested in the Bank
may be exercised from time to time and as often as the Bank may deem
expedient.
10. FEES
10.1 The Borrower shall pay to the Bank a non-refundable arrangement fee of
fifty five thousand United States Dollars (USD55,000) upon the
Execution Date, which fee shall be treated as having been fully earned
on the due date for payment thereof.
11. PAYMENT AND ACCOUNTS
11.1 The Borrower undertakes to procure that all Earnings of the Ship are
paid into the Earnings Account at all times throughout the Loan Period.
Provided that the Bank has not declared the Outstanding Indebtedness to
be immediately due and payable under Clause 14.1 (in which case the
Bank shall be entitled to apply the Earnings in accordance with Clause
11.6), all such sums standing to the credit of the Earning Account
shall be applied in payment to the Borrower or as it may direct.
11.2 No withdrawal shall be made by or on behalf of the Borrower from the
Earnings Account or any other account of the Borrower with the Bank at
any time after an Event of Default or Possible Event of Default has
occurred and is continuing except for:-
(A) payments to the Bank of any amount then due from the Borrower
under this Agreement or any of the other Security Documents;
(B) payments to the Borrower or as it may direct which have been
approved in writing by the Bank.
11.3 Amounts for the time being standing to the credit of the Earnings
Account shall bear interest at the rate which is (save for manifest
error) certified by the Bank to the Borrower to be the rate from time
to time paid by the Bank at its London branch to its customers on
deposits of like amount and duration. Interest so earned shall be
credited to and accumulated in the Earnings Account.
11.4 From and after the occurrence of an Event of Default, all moneys
whatsoever received by or on behalf of the Bank under and pursuant to
one or more of the Security Documents or otherwise howsoever in
connection with the Outstanding Indebtedness may be applied, unless
otherwise specifically provided elsewhere (after conversion if
necessary to the Equivalent Amount of Dollars or other
relevant currency as at the date of receipt), in the following
manner in such order as the Bank considers appropriate:-
(A) in or towards satisfaction of all sums due hereunder and under
the Security Documents other than principal of or interest on
the Loan;
(B) in or towards satisfaction of interest accrued on the Loan;
(C) in or towards satisfaction of the Loan;
(D) in retention by the Bank in a security realised account of
such sum as it considers appropriate by way of security for
the Outstanding Indebtedness where such retention would or
might increase the Bank's recovery from any other person or
security; and
(E) the rest, if any, in payment to whomsoever shall then be
entitled thereto.
11.5 The Bank will maintain a loan account in the name of the Borrower to
which it shall debit the principal amount of the Loan and all interest,
fees, charges and expenses accruing in respect of the Loan from time to
time and to which it shall credit each payment received by it hereunder
in respect of any such principal, interest, fees, charges and/or other
expenses. Such loan account shall, in the absence of manifest
arithmetical error, be conclusive as to the amount from time to time
due from the Borrower to the Bank in respect of the principal of,
interest on and other fees, charges and expenses in respect of the
Loan.
11.6 All payments by the Borrower under this Agreement or any other Security
Document which are denominated in Dollars shall be made not later than
10:00 a.m. New York time on the due date in Dollars as follows-
(A) In respect of fees to the account of the Bank's Hamburg branch
at Chase Manhattan Bank, New York, A/C No. ▇▇▇-▇-▇▇▇▇▇▇; or
(B) In respect of interest payable and repayments of principal to
the Bank's Singapore branch with Chase Manhattan Bank, New
York, A/C No. 400-930498
quoting reference "Ambermar Limited" or at such other account or place
as the Bank may from time to time notify in writing to the Borrower.
11.7 All payments by the Borrower under this Agreement or any other Security
Document which are denominated in a currency other than Dollars shall
be made not later than noon London time on the due date in the relevant
currency to the Bank at its Lending Office or to such other account or
place as the Bank may from time to time notify in writing to the
Borrower.
11.8 Each payment to be made by the Borrower to the Bank under this
Agreement or any other Security Document shall be made without set-off,
free and clear of and without deduction for or on account of any
counterclaim or withholding of any nature including but not limited to
deduction of withholding for Taxes unless the Borrower is required by
law to make such a payment subject to the deduction or withholding of
Taxes. In that case the sum payable by the Borrower in respect of which
such deduction or withholding is required to be made shall be increased
in accordance with Clause 16.2 to the extent necessary to ensure that,
after the making of such deduction or withholding, the Bank receives
and retains (free from any liability in respect of any such deduction
or withholding) a net sum equal to the sum which it would have received
and so retained had no such deduction or withholding been made or
required to be made.
12. REPRESENTATIONS AND WARRANTIES
12.1 The Borrower hereby represents, warrants and covenants to the Bank
that:-
(A) each Obligor is and will remain duly incorporated and validly
existing under the laws of its place of incorporation as a
limited liability company with full power and capacity to
carry on its business as it is now being conducted and to own
its property and other assets and has complied with all
statutory and other requirements relative to its business;
(B) on the Drawdown Date the Ship will be, and throughout the Loan
Period will remain, free and clear of all Encumbrances (other
than Permitted Encumbrances) in the sole, legal and beneficial
ownership of the Borrower;
(C) to the extent of its obligations thereunder, each Obligor has
and will continue to have full power,
authority and capacity to enter into and perform the Security
Documents and has taken all necessary corporate or other
action (as the case may be) required to enable it to do so;
(D) subject to reservations and qualifications included in the
legal opinion issued to the Bank each of the Security
Documents constitutes or will, upon execution and delivery,
constitute valid and legally binding obligations of the
parties thereto enforceable by the parties thereto in
accordance with its terms save for laws restricting creditors'
rights generally (except this representation is not given in
respect of the obligations of the Bank under any of the
Security Documents);
(E) subject to reservations and qualifications included in the
legal opinion issued to the Bank the execution, delivery and
performance of such of the Security Documents to which any of
the Obligors is a party will not violate (or exceed the powers
conferred upon such Obligor under) its articles of
incorporation and bye-laws or other constituting documents or
any provision of any applicable law or of any regulation,
order or decree to which it is subject or result howsoever in
the creation or imposition of any Encumbrance (other than in
favour of the Bank) on all or part of its undertaking or
assets;
(F) subject to reservations and qualifications included in the
legal opinion issued to the Bank all consents, licences,
approvals, registrations or authorisations, of governmental
authorities and agencies or declarations to creditors
required:-
(i) to make each of the Security Documents valid,
enforceable and admissible in evidence and
(ii) to authorise or otherwise permit the execution
and delivery of the Security Documents and the
performance by the parties thereto (except the Bank)
of each of them
have been obtained or made and are and will remain in full
force and effect and there has been no default in the
observance of any of the terms or conditions of any of them;
(G) except for the registration of the Mortgage in the appropriate
ship registry, none of the Security Documents is required to
be filed, recorded, enrolled or in any way whatsoever
registered with any governmental authority or agency of any
country, or to be stamped with any stamp duty or similar tax,
levy or impost in any country, in order to ensure the legal
validity, enforceability or admissibility in evidence thereof;
(H) none of the Obligors to the best of their knowledge and belief
is in default under any agreement to which it is a party or by
which it may be bound (actually or contingently) which default
would be likely to have a material adverse effect on its
business, assets or condition or its ability to perform its
obligations under such of the Security Documents to which it
is or is to be a party and, as at the date hereof, except as
disclosed in writing to the Bank, no material litigation or
administrative proceedings involving any of the Obligors of or
before any board of arbitration, court or governmental
authority or agency is proceeding or pending or (to the
Borrower's knowledge) threatened anywhere in the world the
result of which would have or is likely to have a material
adverse effect on the business, assets or financial condition
of any Obligor and, in the event that any such litigation or
proceedings shall hereafter arise, the Borrower hereby
undertakes to give prompt notice thereof to the Bank;
(I) none of the Obligors is required by the laws of any country
from which it may make any payment hereunder or under any of
the rest of the Security Documents to make any deduction or
withholding from any such payment;
(J) all information furnished by the Borrower relating to the
business and affairs of the Obligors in connection with this
Agreement and the other Security Documents was when given (and
remains) true and correct in all material respects and there
are no other material facts or considerations the omission of
which would render any such information misleading;
(K) the Borrower has fully disclosed in writing to the Bank all
material facts relating to the Obligors which the Borrower
knows or should reasonably know and which might reasonably be
expected to influence
the Bank in deciding whether or not to enter into this
Agreement;
(L) the claims of the Bank against the Borrower under this
Agreement will rank at least pari passu with the claims of all
other unsecured creditors other than the claims of such
creditors to the extent that the same are statutorily
preferred;
(M) no event or circumstance constituting an Event of Default or
Possible Event of Default has occurred and is continuing;
(N) to the best of their knowledge and belief the Borrower has
complied with all Taxation laws in all jurisdictions in which
it is subject to Taxation and has paid all Taxes due and
payable by it; no material claims are being asserted against
the Borrower with respect to Taxes which might, if such claims
were successful, have a material adverse effect on the
business, assets or financial condition of the Borrower;
(0) neither the Borrower nor any of its assets enjoys any right of
immunity from set-off, suit or execution in respect of the
Borrower's obligations under the Security Documents;
(P) the Borrower does not have any assets except as disclosed to
the Bank and the sole business of the Borrower is and will
remain the purchase and subsequent ownership and operation of
the Ship; and
(Q) all of the shares in the Borrower are legally and beneficially
owned by ▇▇▇▇▇▇▇.
12.2 The Borrower further represents and warrants to the Bank that on the
Drawdown Date and on each Repayment Date the representations and
warranties contained in Clause 12.1 (updated mutatis mutandis to each
such date) shall be true and correct as if made at that time.
13. COVENANTS AND UNDERTAKINGS
13.1 The Borrower covenants with and undertakes to the Bank that it will:-
(A) carry on and conduct its business in a proper and efficient
manner and will duly pay all outgoings as and when they fall
due;
(B) use its best endeavours to obtain or procure the obtaining of
every consent and do all other acts and things which may, in
the opinion of the Bank, be necessary for the continued due
performance by the Borrower of any of its obligations under
the Security Documents;
(C) ensure that at all times all governmental and other consents,
licences, approvals and authorisations required by law for the
validity, enforceability, and legality of each of the Security
Documents and for the performance thereof are obtained and
remain in full force and effect and are complied with;
(D) procure the application of Advance for the purpose specified
in Clause 3, perform all its obligations under the Security
Documents and procure the performance by each of the Obligors
of all their obligations under the relevant Security
Documents;
(E) promptly inform the Bank of the happening of any Event of
Default or Possible Event of Default or of any event which
would be likely adversely to affect the ability of any Obligor
to perform its obligations under any of the Security
Documents;
(F) deliver to the Bank within one hundred and twenty (120) days
after the end of its financial year in as many copies as the
Bank may reasonably require certified copies of its audited
annual or other published accounts and copies of all financial
statements as required by law in a form consistent with
generally accepted accounting principles and practices
consistently applied, certified as to their correctness by
such auditors as the Bank may approve;
(G) at its own expense and forthwith upon the request of the Bank
procure the execution, signature, completion, delivery and (if
required) registration of every such further assurance,
document or act as, in the reasonable opinion of the Bank may
be necessary or desirable in connection with the purpose of
the terms of the Security Documents and/or for perfecting the
security so created.
13.2 The Borrower covenants with and undertakes to the Bank that it will not
without the prior written consent of the Bank (which consent the Bank
shall be at full liberty to withhold):-
(A) create or permit to subsist any Encumbrance on the whole or
any part of its present or future assets save for Permitted
Encumbrances;
(B) incur any liability in respect of Borrowed Money;
(C) make loans or advances to others or incur any liability to any
other party except for loans, advances and liabilities made or
incurred in the ordinary course of business and which are
immaterial in the opinion of the Bank;
(D) guarantee, endorse or otherwise become or remain liable to a
third party for the obligations of any person, firm or
corporation;
(E) engage in any business other than the ownership, operation,
chartering and management of the Ship or make any actual or
contingent commitment or investment of any kind;
(F) consolidate with or merge into any other company or establish
any subsidiary or permit any subsidiary to subsist;
(G) sell or agree to sell or otherwise dispose of the Ship or any
share therein.
13.3 The Borrower undertakes to procure that at all times during the Loan
Period (A + B) - C is equal to at least one hundred and twenty per cent
(120 %) of the Loan where
A = the amount of a current Valuation of the Ship; and
B = the amount of any additional security provided to and
accepted by the Bank pursuant to paragraph (A) below; and
C = the Dollar amount, as conclusively determined by the Bank,
of all Encumbrances whatsoever subsisting on the Ship (other
than Encumbrances in favour of the Bank);
so that if at any time during the Loan Period the Borrower is in breach
of such requirement then it will either: -
(A) immediately pay to an account to be nominated by the Bank such
additional sum as the Bank certifies will remedy such breach
or provide the Bank with additional collateral security (in
form and
substance and accompanied by documentation acceptable to the
Bank) over assets acceptable to the Bank in its sole and
unfettered discretion whose value is, in the opinion of the
Bank, sufficient to remedy such breach; or
(B) immediately prepay part of the Loan by such amount as will
remedy such breach, such prepayment otherwise to be made in
accordance with the terms and conditions of this Agreement.
For the purposes of this Clause the Ship shall be valued in Dollars
(with or without inspection) on the basis of a normal arms-length
charter-free sale between a willing seller and a willing buyer. Such
valuations shall be given in writing and shall be prepared by two
reputable firms appointed from time to time by the Bank, at its sole
and unfettered discretion, and the "Valuation" of the Ship shall be the
average of the two valuations thereof so obtained.
The Bank shall be entitled to arrange for a Valuation of the Ship to be
prepared at the Borrower's expense once a year and/or after the
occurrence of an Event of Default at any time and from time to time
throughout the Loan Period.
14. EVENTS OF DEFAULT
14.1 The Bank may by notice to the Borrower and without prejudice to any
other rights of the Bank under the Security Documents and without the
necessity of any declaration of any court of law in any jurisdiction to
the effect that an Event of Default has occurred declare the
Outstanding Indebtedness to be immediately due and payable, whereafter
the Borrower shall be obliged forthwith to pay the Outstanding
Indebtedness to the Bank and any security held pursuant to the terms
hereof and all rights, powers and remedies under the Security Documents
shall become immediately enforceable and exercisable at the Bank's sole
and unfettered discretion, if any of the following events has occurred
and is continuing:-
(A) the Borrower fails to pay within five (5) days of the due date
therefor any sum in respect of the principal of or interest on
the Loan or any part thereof or any other sum due hereunder or
under the other Security Documents in the manner provided
herein or therein;
(B) any Obligor is in default of any of its obligations under any
of the Security Documents to which it is a party and, if the
same is in the opinion of the Bank capable of remedy, such
default is not remedied within thirty (30) days after written
notice from the Bank requesting remedial action;
(C) any of the representations and warranties made by any Obligor
in any one or more of the Security Documents to which it is a
party or in connection herewith or therewith or any notice,
certificate or statement delivered or made pursuant hereto or
thereto is or becomes, if repeated by reference to facts and
circumstances then subsisting, materially incorrect or
inaccurate;
(D) any loan, debt, guarantee or other obligation constituting
indebtedness of over one million Dollars (USD1,000,000) of any
one or more of the Obligors becomes or is declared due prior
to its specified maturity date by reason of default or a
distress or other execution or any injunction is levied or
ordered upon or against any part of the property of any one or
more of the Obligors;
(E) any Obligor stops payment of or is unable to or admits in
writing its inability to pay its lawful debts as they mature
or is generally not paying its debts as they become due or
makes a general assignment for the benefit of its creditors or
any special arrangement or composition with its creditors;
(F) any resolution is passed or any proceedings are commenced for
the purpose of or any order (which, once granted, is not
discharged or withdrawn within thirty (30) days) or judgment
is made or given by any court of competent jurisdiction for
the liquidation, winding-up or reorganisation of any Obligor
(otherwise than for reconstruction while solvent on terms
previously approved by the Bank) or for the appointment of a
receiver, trustee, conservator or liquidator of all or a
substantial part of any Obligor's undertaking or assets;
(G) any Obligor shall suspend or threaten to suspend all or a
substantial part of its business or if all or a substantial
part of its assets or property shall be appropriated or seized
by any governmental or other authority;
(H) a moratorium in respect of all or any debts of any Obligor or
a composition or an arrangement with creditors of any Obligor
or any similar proceedings or arrangement by which the assets
of any Obligor are submitted to the control of its creditors
is applied for, ordered or declared without the prior written
consent of the Bank or any Obligor commences negotiations with
its creditors generally with a view to the general
readjustment or rescheduling of all or a significant part of
its financial indebtedness without the prior written consent
of the Bank;
(I) a liquidator, trustee, administrator, administrative receiver,
receiver, manager or similar officer is appointed in respect
of any Obligor or in respect of all or any substantial part of
its assets;
(J) anything analogous to or having a substantially similar effect
to any of the events specified in Clause 14.1(D) to Clause
14.1(I), inclusive, occurs in relation to any Obligor under
the laws of any applicable jurisdiction;
(K) any licence, consent, permission or approval required at any
time in connection with the implementation, maintenance and
performance of one or more of the Security Documents is
revoked, terminated, modified or imposed and consequently it
becomes impossible or unlawful for:-
(i) any Obligor to fulfil any of its respective covenants
and obligations contained in one or more of the
Security Documents to which it is party; or
(ii) the Bank to exercise its rights under one or more of
the Security Documents;
(L) the Ship is sold otherwise than with the prior written consent
of the Bank;
(M) the Ship and/or the Mortgage ceases to be permanently
registered under the laws and flag of Cyprus;
(N) the Borrower fails to insure the Ship in the manner specified
in the Security Documents or fails to renew the Insurances and
produce prompt notification of such renewal to the Bank;
(0) the Ship becomes a Total Loss and the Loan is not prepaid to
the Bank in accordance with the terms of Clause 8.6;
(P) there occurs any material adverse change in the financial
position of any Obligor;
(Q) there occurs any change to the beneficial and/or legal
ownership of the shares in the Borrower otherwise than with
the prior written consent of the Bank;
(R) there occurs any charge as a result of which the beneficial
and/or legal ownership of the percentage of shares in Stelmar
held by the ▇▇▇▇-▇▇▇▇▇▇▇ family falls below twenty five
percent (25%) plus one (1) share otherwise than with the prior
written consent of the Bank (such consent not to be
unreasonably withheld);
(S) anything is done or suffered or omitted to be done by any
Obligor which in the opinion of the Bank has imperilled or is
likely to imperil the security created or intended to be
conferred by any of the Security Documents;
(T) any event of default (howsoever described) specified in any of
the Security Documents shall occur.
15. YIELD PROTECTION, ILLEGALITY AND FORCE MAJEURE
15.1 If by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request from or
requirement of any central bank or other fiscal, monetary or other
authority:-
(A) the Bank incurs any increase in cost or new cost as a result
of its advancing the Loan or performing any other of its
obligations under this Agreement and/or;
(B) there is any increase in the cost to the Bank of funding or
maintaining the Advance or any part thereof, or
(C) the Bank incurs any increase in cost or new cost as a result
of its having entered into and/or assuming or maintaining its
commitment under this Agreement; or
(D) the Bank becomes liable to make any increased payment on
account of Taxes or otherwise (other than Taxes on its overall
net income) on or calculated by reference to the amount of
advances made or to be made by it hereunder
then the Borrower shall from time to time on demand procure that there
is paid to the Bank amounts sufficient to indemnify the Bank against
any such cost or liability. The Bank confirms that as a matter of
practice it is its intention to give prompt notice to the Borrower of
such occurrence but failure by the Bank to give any such notice shall
not prejudice its rights to seek such an indemnity from the Borrower.
15.2 If, by reason of the introduction of or any change in law or in its
interpretation or any change in any request from or requirement of any
central bank or other monetary or other authority, the Bank thereafter
obtains a reduced rate of return on its overall capital compared to the
rate of return it would have been able to achieve but for its entering
into and/or performing its obligations and/or assuming or maintaining a
commitment under this Agreement, then the Borrower shall from time to
time procure that, upon receipt of a certificate from the Bank
demonstrating the amount of the reduction in such rate of return to the
Bank, there are paid on demand amounts sufficient to compensate the
Bank for the reduction in such rate of return. The Bank confirms that
as a matter of practice it is its intention to give prompt notice to
the Borrower of such occurrence but failure by the Bank to give any
such notice shall not prejudice its rights to seek such compensation
from the Borrower.
15.3 If any change in or in the interpretation or application of, any law,
regulation or treaty shall make it unlawful hereunder or in any
jurisdiction applicable to the Bank for the Bank to make available or
maintain the Loan or to give effect to its other obligations as
contemplated hereby then the Bank may, by notice thereof to (in this
Clause 15 an "Illegality Notice") declare that the whole or any part of
the Bank's such obligations shall be terminated forthwith whereafter
upon written notice or notices being served by the Bank upon the
Borrower one or more of the following may apply at the Bank's sole and
unfettered discretion:-
(A) the Borrower will prepay the Loan together with interest
accrued thereon forthwith (or, if permitted by the relevant
law, regulation or treaty, at the end of the then current
Interest Period(s)); and
(B) the Bank's obligation thereafter to make available the Loan or
any part thereof shall be upon such terms as the Bank may
specify.
15.4 Without prejudice to the exercise of the Bank's discretion under Clause
15.3 and the obligations of the Borrower thereunder, in the event that
the Bank serves an Illegality Notice, the Bank and the Borrower shall
negotiate in good faith with a view to agreeing terms for making or
continuing to make the Loan or any part thereof available from another
jurisdiction where to do so would be lawful in all respects.
15.5 The Bank shall not be liable for any failure to perform the whole or
any part of this Agreement resulting directly or indirectly from the
action or inaction or purported action of any governmental or local
authority or any strike, lockout, boycott or blockade (including any
such effected by or upon the Bank's employees) or from any Act of God
or war (whether declared or not) affecting the Bank.
16. TAXES
16.1 The Borrower agrees to pay or to cause to be paid directly to the
appropriate governmental authority or to the Bank the cost of any and
all present and future Taxes (other than Taxes on the overall net
income of the Bank) or such sum as shall be necessary to reimburse the
Bank in respect of any such cost (including any additional Taxes due as
a consequence of such payment or reimbursement) levied or imposed by
any governmental authority on or with regard to any aspect of the
transaction contemplated in or by this Agreement.
16.2 If the Borrower is prohibited by operation of law from paying, causing
to be paid or reimbursing the Bank for the cost of any Taxes, as
provided by the terms of Clause 16.1 or if the Bank is required by law
to make any payment on or in relation to any amount received or
receivable from the Borrower on account of any Taxes then any such
payment due under this Agreement shall be increased to ensure that,
after such deduction of or payment for such Taxes, the Bank receives,
remains in possession of and is beneficially entitled to a net sum
equal to the sum which it would have received and to which it would
have been entitled had no such deduction or payment been required.
16.3 If the Borrower is obliged to make payments for Taxes pursuant to the
terms of this Clause 16, it shall confirm to the Bank that all such
Taxes have been paid by forwarding to the Bank within thirty (30) days
after payment an official receipt (if provided) or such other
documentary evidence as is acceptable to the Bank.
16.4 The Bank will account to the Borrower for any such moneys or credit as
shall be received by the Bank and recognised by it as being referable
to any additional amount paid by the Borrower pursuant to the preceding
provisions of this Clause 16 if and to the extent that by so accounting
the Bank shall be left in no worse a financial position than it would
have been if the circumstances described in this Clause 16 had not
arisen.
17. BENEFIT OF AGREEMENT
17.1 This Agreement shall be binding upon and enure to the benefit of the
Bank and the Borrower and their respective successors and assigns. The
Borrower may not assign its rights or obligations hereunder and the
Bank may not (without the prior written consent of the Borrower which
consent shall not be unreasonably withheld) transfer or assign or grant
sub-participations in all or any portion of its rights hereunder.
17.2 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
18. EXPENSES AND INDEMNITIES
18.1 The Borrower undertakes to indemnify the Bank on demand in respect of
all costs, charges and expenses including, without limitation, legal
fees and survey fees (together with value added tax or any similar tax
thereon) incurred by the Bank in connection with the negotiation,
preparation, printing, execution and registration of each of the
Security Documents and any other document referred to therein and the
completion of the transaction therein contemplated.
18.2 The Borrower undertakes to indemnify the Bank on demand in respect of
the charges and expenses including, without limitation, legal fees
(together with value added tax or any similar tax thereon) incurred by
the Bank in connection with the consideration and/or implementation of
any subsequently agreed variation to any of the
Security Documents and the exercise or enforcement or attempted or
contemplated exercise or enforcement against any Obligor of, or the
reservation or preservation or attempted or contemplated reservation or
preservation of any rights, powers, privileges, remedies or securities
under, any one or more of the Security Documents.
18.3 The Borrower undertakes to indemnify the Bank on demand against any and
all stamp, registration and similar Taxes which may be payable in any
jurisdiction in connection with the entry into, performance and
enforcement of this Agreement and the other Security Documents.
18.4 Without prejudice to the entitlement of the Bank pursuant to the terms
of Clauses 6 and 15 the Borrower shall indemnify the Bank against any
loss and/or expense (including legal expenses) which it may sustain or
incur as a consequence of:-
(A) any default in repayment of the Loan (or any part thereof) or
in payment of interest accrued thereon or any other amount
payable pursuant to the terms of one or more of the Security
Documents; or
(B) the occurrence of any other Event of Default or of any
prepayment of the Loan or any part thereof otherwise than in
accordance with the terms of this Agreement; or
(C) the Advance not being drawn in accordance with a Utilisation
Request relating thereto as a result of the occurrence of an
Event of Default or Possible Event of Default; or
(D) the Advance not being disbursed as a result of any Condition
Precedent not having been complied with to the satisfaction of
the Bank,
including (but without limitation) all relevant Break Costs.
18.5 The Borrower shall indemnify the Bank against all losses, premiums,
penalties, costs and expenses whatsoever incurred by the Bank in
connection howsoever with any interest rate "swap", "cap" or other
transaction entered into or to be entered into by the Bank at the
Borrower's request at any time and from time to time with any
counterparty during the Loan Period the ultimate commercial purpose of
which is to limit or offset the exposure of the Borrower to future
increases of floating
interest rates in connection howsoever with this Agreement.
18.6 If any sum due from the Borrower under any of the Security Documents or
any order or judgment given or made in relation thereto has to be
converted from the currency ("the first currency") in which the same is
payable hereunder or under such order or judgment into another currency
("the second currency") for the purpose of (i) making or filing a claim
or proof against the Borrower, (ii) obtaining an order of judgment in
any court or tribunal or (iii) enforcing any order or judgment given or
made in relation to any of the Security Documents, the Borrower shall
indemnify and hold harmless the Bank from and against any damages or
losses suffered as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (b) the rate or rates of
exchange at which the Bank may in the ordinary course of business
purchase the first currency with the second currency upon receipt of a
sum paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof.
18.7 The indemnities contained in this Clause 18 shall apply irrespective of
any indulgence granted to the Borrower from time to time and shall
continue in full force and effect notwithstanding any payment in favour
of the Bank and any amount due from the Borrower under this Clause 18
will be due as a separate debt and shall not be affected by judgment
being obtained for any other sums due or in respect of one or more of
the Security Documents.
19. SET-OFF AND COMBINATION OF ACCOUNTS
19.1 The Borrower irrevocably authorises the Bank to combine any and all
accounts held by the Borrower with it and to apply (without prior
notice) any credit balance (whether or not then due) to which the
Borrower is at any time beneficially entitled on any such account at
any of the Bank's offices in or towards satisfaction of any sum then
due from the Borrower to the Bank under this Agreement and unpaid. For
that purpose, the Bank is irrevocably authorised to use all or any part
of any such credit balance to buy such other currencies as may be
necessary to effect such application. The Bank shall not be obliged to
exercise any of its rights under this clause, which shall be without
prejudice and in addition to any right of set-off, combination of
accounts, lien or other right to which it is at any time otherwise
entitled (whether by operation of law, contract or otherwise).
20. MISCELLANEOUS
20.1 Time is of the essence in respect of all obligations of the Borrower
under this Agreement. No failure or delay on the part of the Bank to
exercise any power or right pursuant to the terms of this Agreement or
any other Security Document shall operate as a waiver thereof nor shall
any single or partial exercise by the Bank of any power or right
preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided herein are cumulative and are not
exclusive of any remedies provided by law.
20.2 In case any one or more of the provisions contained in one or more of
the Security Documents should be invalid, illegal or unenforceable in
any respect under any law, the validity, legality and enforceability of
the remaining provisions herein or therein contained shall not in any
way be affected or impaired thereby and shall remain in full force and
effect.
20.3 All notices or other communications and all documents to be given to
the Bank pursuant to the terms of the Security Documents shall either
be in or accompanied by a certified translation into the English
language.
20.4 This Agreement may be amended or varied only by an instrument in
writing executed by or on behalf of all of the parties hereto.
20.5 This Agreement may be executed in counterparts each of which shall be
deemed an original and all of which, taken together, shall constitute
but one and the same instrument which may be sufficiently evidenced by
one counterpart.
20.6 A certificate by the Bank as to any amount due or calculation made
hereunder shall be conclusive save for manifest error.
20.7 This Agreement and the other Security Documents to which the Borrower
is a party represent the entire agreement between the Bank and the
Borrower and all prior discussions and negotiations are merged herein
and therein.
20.8 In the event of any inconsistency between the terms of this Agreement
and the terms of any of the other Security Documents, the terms of this
Agreement shall prevail.
21. NOTICES
21.1 Except as otherwise provided herein, any notice, request, demand or
other communication to be made or delivered pursuant to this Agreement
shall be given in writing in the English language and shall:-
(A) be addressed (i) in the case of the Borrower to it at the
Notice Address and (ii) in the case of the Bank to it at the
Lending Office or, in either case, to such other address as
either party may from time to time notify in writing to the
other;
(B) be delivered personally or by first class post with postage
prepaid (airmail if available) or by telefax;
(C) be deemed to have been received, in the case of any letter,
when delivered personally or five (5) days after being
deposited in the post if sent by first class post (airmail if
available) or, in the case of telefax, immediately upon
receipt of a complete and legible copy of the communication
provided prior warning of despatch is given by telephone to
the addressee.
22. GOVERNING LAW, JURISDICTION AND PROCESS
22.1 This Agreement shall be governed by and construed in accordance with
English law and, for the exclusive benefit of the Bank, the Borrower
agrees that any legal action or proceeding arising out of any Security
Document to which it is a party may be brought in the High Court of
Justice in
England and irrevocably submits itself to the jurisdiction
of that court. The submission by the Borrower to such jurisdiction
shall not limit the right of the Bank to commence any proceedings
arising out of this Agreement or any other such Security Document in
whatsoever jurisdiction it may choose, nor shall the commencement of
any such legal action or proceeding in one jurisdiction preclude the
Bank from beginning any further or other such legal action or
proceeding in the same or any other jurisdiction. The Borrower
irrevocably waives any objection which it may have now or hereafter to
the jurisdiction of the said High Court of Justice in
England and
agrees not to claim that such court is not a convenient or appropriate
forum.
22.2 The Borrower consents generally in respect of any such proceedings to
the giving of any relief or the issue of any process in connection with
such proceedings
including, without limitation, the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or given in such
proceedings.
22.3 The Borrower hereby irrevocably authorises and appoints the Process
Agent as its agent in
England for the acceptance of service of legal
process under this Agreement, service upon whom at the Process Address
shall be deemed to constitute good service of legal process without
prejudice to any other lawful means. The Borrower undertakes to procure
that the Process Agent (or any successor thereto approved by the Bank)
shall act as the Borrower's agent for service of process in
England
throughout the Loan Period and that, should a successor agent be
appointed, such person shall confirm in writing to the Bank its
acceptance of such appointment.
SCHEDULE 1
The conditions precedent in respect of the Advance are:-
1. Due execution and delivery of the Security Documents and of any
documents to be executed pursuant to the terms thereof (including,
without limitation, any notices to be given and/or acknowledgements to
be received pursuant thereto) and due registration of the Mortgage and
any other registrable charges created pursuant to the Security
Documents.
2. Completion of all such formalities and execution of all such mandates
as are necessary to establish the Earnings Account.
3. Delivery to the Bank in respect of each corporate Obligor of:-
(A) a certified copy of its certificate of incorporation and of
each of its constituting corporate documents;
(B) certified copies of resolutions passed at duly convened
meetings of its directors and shareholders approving the
execution and performance by it of each of the Subject
Documents to which it is or will be a party (and all matters
incidental thereto);
(C) the original power of attorney, if any, issued pursuant to the
resolutions referred to in (B) above duly notarised and (if
required by the Bank) apostilled or legalised;
(D) a certificate signed by its secretary certifying (i) the names
and offices of each director and officer thereof, (ii) the
amount of its authorised and issued share capital and the
names and shareholdings of each shareholder and (iii) that no
consents or approvals are required by it from any authority,
creditor or other person whatsoever for the execution and
performance by it of any of the Subject Documents to which it
is or will be a party (or, if any such consent or approval is
required, attaching certified copies thereof and confirming
that no other such consents or approvals are required);
(E) a certificate of goodstanding
each in such form and with such content as may be acceptable to the
Bank.
4. Delivery to the Bank of a certified copy of the MOA and of such other
Subject Documents not specifically mentioned herein as the Bank may
require, each in such form and with such content as may be acceptable
to the Bank.
5. Production of such evidence as the Bank may require that there is no
dispute under any of the Subject Documents as between the parties
thereto.
6. Delivery to the Bank of a certified copy of the latest unaudited
consolidated accounts of ▇▇▇▇▇▇▇.
7. Production of such evidence as the Bank may require that the Purchase
Price has been (or contemporaneously with drawdown of the Advance will
be) paid in full to the Seller and that the Ship has been (or
contemporaneously with drawdown of the Advance will be) delivered to
and accepted by the Borrower under the MOA and registered in the name
of the Borrower under the laws and flag of the Republic of Cyprus, free
from all Encumbrances except Permitted Encumbrances, and that the prior
registration of the Ship in the name of the Seller has been cancelled.
8. Production of such evidence as the Bank may require that the Ship is
insured in accordance with the terms of the Security Documents and that
the interest of the Bank in the Insurances as assignee or co-assured
has been or will be effected and thereafter noted by all underwriters,
brokers, reinsurers and mutual clubs and associations concerned.
9. Written confirmation from the insurance brokers and the managers of any
protection and indemnity or war risks association through whom any
Insurances have been placed that they will each issue a letter of
undertaking in a form acceptable to the Bank upon receipt of a written
notice of the assignment of the Insurances contained in the General
Assignment.
10. Production of such evidence as the Bank may require that the Ship
maintains the highest class free of any requirements or recommendations
with a classification society acceptable to the Bank.
11. Delivery to the Bank of a certified copy of:-
(A) a valid safety management certificate (or interim safety
management certificate) issued to the Ship in respect of its
management by the Borrower (or by any
operator of the Ship) pursuant to the International Safety
Management Code;
(B) a valid document of compliance (or interim document of
compliance) issued to the Borrower (or to any operator of the
Ship) in respect of ships of the same type as the Ship
pursuant to the International Safety Management Code;
(C) a current certificate of financial responsibility in respect
of the Ship issued under the US Oil Pollution Act of 1990; and
(D) such other of the Ship's tonnage, SOLAS and other trading
certificates as the Bank shall require.
12. Evidence that all such fees and expenses referred to in Clause 10 as
are payable on or before the Drawdown Date have been received by the
Bank.
13. The issue of such favourable written legal opinions in such form as the
Bank may require relating to all aspects of the transactions
contemplated hereby governed by any applicable law.
14. Confirmation from the Process Agent that it will act as the process
agent for service of process in
England of each Obligor.
SCHEDULE 2
FORM OF UTILISATION REQUEST
To: Hamburgische Landesbank-Girozentrale-
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Date: 2002
Dear Sirs,
FINANCING OF HULL NO. 1071 T.B.N. "AMBERMAR"
1. We refer to the
loan agreement (the "Agreement") dated 2002 made
between yourselves as lender and ourselves as borrower. Words and
expressions whose meanings are defined in the Agreement shall have the
same meanings when used herein.
2. We confirm that, at the date hereof, no Event of Default or Possible
Event of Default has occurred which has not been remedied and that the
representations and warranties contained in Clause 12.1 of the
Agreement are true and accurate with reference (mutatis mutandis) to
all facts and circumstances existing at the date hereof.
3. We hereby give you notice that we wish to draw [ ] Dollars
(USD[ ]) under the terms of the Agreement on [ ].
4. We hereby request that the first Interest Period in respect of the
Advance shall be of [ ] ([ ]) months' duration.
5. On the Drawdown Date you are hereby irrevocably authorised and
requested to apply the Advance as follows:-
(A) as to the sum of [ ] Dollars (USD[ ]) disbursement
thereof to the Builder's account number [ ] at [ ];
and
(B) as to the balance of [ ] Dollars (USD[ ]) in
disbursement thereof to our account number [ ]
at [ ].
Yours faithfully
[ ]
By:
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Title:
EXECUTION PAGE
IN WITNESS whereof the parties have executed this Agreement the day and year
first written above.
SIGNED by
for and on behalf of
HAMBURGISCHE LANDESBANK-GIROZENTRALE-
in the presence of:-
Name:
Address:
Occupation:
SIGNED by
for and on behalf of
AMBERMAR LIMITED
in the presence of:-
Name:
Address:
Occupation: