Dated 16 April 1997
MULTI CURRENCY
SECURED REVOLVING CREDIT FACILITY
between
THE RIVERFRONT DEVELOPMENT CORPORATION
as Borrower
and
FINANSBANKEN ASA
as Bank
--------------------
NOK 60,000,000
--------------------
Wikborg, Rein & Co.
▇▇▇▇ ▇'▇ ▇▇▇▇ ▇
P.O. Box 1513 Vika
M-0117 Oslo - Norway
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
2/45
TABLE OF CONTENTS
Clause Page No.
------ --------
1. Interpretation 3
2. The Commitments 8
3. Purpose 8
4. Conditions Precedent 9
5. Drawdown 10
6. Repayment 11
7. Prepayment and Cancellation 11
8. Interest Periods 12
9. Interest 12
10. Payments 13
11. Optional Currency 14
12. Taxes 15
13. Market Disruption 15
14. Increased Costs 16
15. Illegality 17
16. Force Majeure 17
17. Security 17
18. Representations and Warranties 18
19. Covenants 21
20. Default 23
21. Fees and Expenses 26
22. Indemnities 27
23. Amendments and Waivers 28
24. Changes to the Parties 29
25. Severability 29
26. Notices 29
27. Language 30
28. Service of Process 30
29. Governing Law 31
30. Jurisdiction 31
SCHEDULES
---------
1 Form of Drawdown Notice 32
2 Condition Precedent Documents 33
3 Form of Pledge of Accounts 34
4 Form of Guarantee 37
2
THIS AGREEMENT is dated 16 April, 1997 and made between:
(1) THE RIVERFRONT DEVELOPMENT CORPORATION, a New Jersey corporation, c/▇ ▇▇▇▇
Cargo System, Inc., King and Essex Streets, Gloucester City, NJ 08030,
U.S.A. as borrower (the "Borrower") and
(2) FINANSBANKEN ASA, Stortingsgt. 8, P.O. Box 817, Sentrum 0104 Oslo, Norway
as lender (the "Bank")
IT IS AGREED as follows
1. INTERPRETATION
1.1 Definitions
In this Agreement, the following terms shall have the meanings set opposite
to them below:
"ACL" Atlantic Container Line Aktiebolag, with
Swedish organization No. 556000-7006.
"ACL Shares" the shares in ACL owned by the Borrower from
time to time.
"Banking Day" a day on which banks are open for business
of the nature required by this Agreement
in Oslo, New York, and any other jurisdiction
relevant to this Agreement or any Drawing
hereunder.
"Commitment" the amount of NOK 60,000,000 to the extent
not cancelled, reduced or transferred under
this Agreement.
"Commitment Period" the period from the date of this Agreement
until the Final Maturity Date.
"Drawdown Date" the date of the advance of a Drawing pursuant
to this Agreement.
3
"Drawdown Notice" a request made by the Borrower for a Drawing,
substantially in the form of Schedule 1.
"Drawing" each borrowing by the Borrower under this
Agreement or the principal amount outstanding
of that borrowing from time to time.
"Event of Default" an event specified as such in Clause 20
(Events of Default).
"Exchange Rate" the Bank's costs for the purchase of USD with
NOK at or about 10:00 am. (Oslo time) on the
Quotation Date.
"Facility" this revolving credit facility, the terms of
which are set out herein.
"Final Maturity Date" the first anniversary of the first Drawdown
Date.
"Financial Indebtedness" any indebtedness (whether actual or
contingent) incurred in respect of borrowed
moneys or any other payment obligations, and
commitments of any nature that may expose any
person to payment of moneys.
"Functioning Market" trading on the Oslo Stock Exchange of at
least 100 ACL shares by bona fides third
parties for a period 14 days.
"Guarantee" a joint and several guarantee for the
Outstanding Indebtedness of the Borrower, to
be issued by the Guarantors in favour of the
Bank as security for the Borrower's
obligations under this Agreement,
substantially in the form of Schedule 4
hereto.
"Guarantors" jointly and severally, each of ▇▇▇▇ Hauling
and Warehousing System, Inc., a Pennsylvania
corporation, and ▇▇▇▇ Cargo Systems, Inc., a
Delaware corporation.
4
"Interest Accounts" Borrower's NOK-account No. 9680.05.56888
and/or USD-account No. 9680.55.10185 with the
Bank.
"Interest Period" each successive period in the Borrower's
option of (i) one, two, three or six months
or (ii) such other period as may be requested
by the Borrower (e.g. in connection with
merging of Drawings) and agreed by the Bank
(subject to the availability of such funds to
the Bank) commencing on the Drawdown Date,
provided that if an Interest Period would end
on a day which is not a Banking Day it shall
end on the following Banking Day, unless such
day falls in the next calendar month, in
which case the Interest Period shall end on a
preceding Banking Day.
"Interest Payment Date" the last Banking Day of each Interest Period
for that Drawing, and if the Interest Period
is longer than three months, at tri-monthly
intervals during that Interest Period.
"LIBOR" the annual rate of interest (rounded upwards
if necessary to the nearest whole multiple of
1/16 per cent) which at or about 11.00 a.m.
(Oslo time) on a Quotation Date appears on
the ▇▇▇▇▇▇ Screen LIBO Page or such other
page as may replace that service for the
purpose of displaying the offer of USD
deposits for a period equal to the relevant
Interest Period.
"Loan" at any time, the aggregate Original NOK
Amount of all Drawings outstanding under this
Agreement.
"Margin" 2% (two per cent) per annum.
"Market Value" the value of the ACL Shares calculated on the
basis of the trading price listed on the Oslo
Stock Exchange for shares in ACL as of the
final trade on the relevant day, but if there
is no Functioning Market immediately prior
5
to such day, the value of the ACL Shares as
reasonably determined by the Bank.
"NIDR" the annual rate of interest (rounded upwards
if necessary to the nearest whole multiple of
1/16 per cent) which at or about 11.00 am.
(Oslo time) on a Quotation Date appears on
the ▇▇▇▇▇▇ Screen NIDR Page or such other
page as may replace that service for the
purpose of displaying the offer of NOK
deposits for a period equal to the relevant
Interest Period and in an amount similar to
the relevant Drawing.
"NOK" the lawful currency of the Kingdom of Norway
from time to time.
"Original NOK
Amount" in relation to a Drawing, means:
(a) if that Drawing is denominated in NOK,
the amount of that Drawing; or
(b) if that Drawing is denominated in USD,
the equivalent in NOK of the amount of
that Drawing calculated on the basis of
the Exchange Rate.
"Offered Rate" NIDR or LIBOR, as the case may be.
"Outstanding
Indebtedness" all sums of any kind at any time owing
actually or contingently by the Borrower to
the Bank in relation to this Agreement and
the Security Documents or any of them,
including, but without limitation, by way of
repayment of principal, payment of interest
and default interest, payment upon any
indemnity or counter indemnity, reimbursement
for costs or otherwise whatsoever.
6
"Pledge of
Accounts" the Pledge of Accounts agreement between the
Bank and the Borrower whereby the Borrower
pledges to the Bank the VPS Account, the VPC
Account, and the ACL Shares therein
registered from time to time as security for
the obligations of the Borrower under this
Agreement, substantially in the form attached
hereto as Schedule 3.
"Quotation Date" the second Banking Day before the first day
of an Interest Period.
"Repayment Date" in respect of each Drawing, the last day of
the Interest Period for the Drawing.
"Security Documents" together, the Pledge of Accounts and the
Guarantee.
"Security Interest" any mortgage, pledge, lien, charge (whether
fixed or floating), assignment by way of
security, finance lease, sale and repurchase
or sale and lease back arrangement, sale of
receivables on a recourse basis or security
interest or any other agreement or
arrangement having the effect of confering
security, except for liens arising solely by
operation of law and/or the ordinary course
of business securing amounts not more 45 days
overdue.
"USD" means the lawful currency of the United
States of America from time to time.
"VPS Account" the Borrower's VPS account No. 09680004580 in
Norway which is administered by the Bank and
wherein the ACL Shares are electronically
registered in Norway.
"VPC Account" the Borrower's VPC No. 000070670455, which is
administrated by SE-Banken, and wherein the
ACL Shares are electronically registered in
Sweden.
7
1.2 Construction
1.2.1 Words importing the singular shall (unless the contrary intention
appears) include the plural and vice versa;
1.2.2 A Clause or a Schedule is respectively a reference to a clause of
or schedule to this Agreement; and
1.2.3 A provision of law is a reference to that provision as amended or
re-enacted, and to any regulation made by the appropriate authority
pursuant to such law.
2. THE COMMITMENTS
2.1 Statement of Commitments and Maximum Amount
2.1.1 Subject to the terms of this Agreement, the Bank agrees to make
available to the Borrower funds in NOK and/or USD up to an
aggregate Original NOK Amount not exceeding the Commitment.
2.1.2 Notwithstanding any other provision of this Agreement, the
aggregate principal amount of all Drawings including any requested
Drawing may not on any requested Drawdown Date, when applying the
Exchange Rate, exceed the Commitment.
2.2 Revolving Credit Facility
During the Commitment Period the Borrower may utilise the Facility
on a revolving basis so that any amounts repaid prior to or at the
end of the Commitment Period may be redrawn by the Borrower subject
to the terms and conditions of this Agreement.
3. PURPOSE
The Borrower shall apply the Drawings for its general corporate
purposes, including to finance its acquisition of the ACL Shares.
8
4. CONDITIONS PRECEDENT
4.1 Documentary Conditions Precedent
The obligations of the Bank to the Borrower under this Agreement
are subject to the condition precedent of the Bank having received
all of the documents set out in Schedule 2 in form and substance
satisfactory to the Bank.
4.2 Further Conditions Precedent
4.2.1 The obligations of the Bank to advance or make available or
re-advance any amount under Clauses 5.2 (Drawdown Notice) and 5.3
(Participation in Drawings), are subject to the further conditions
precedent that on both the date of the Drawdown Notice and the date
on which the relevant amount is to be advanced:
(a) the representations and warranties in Clause 18
(Representations and Warranties), all which are deemed to be
repeated on those dates, are correct and will be correct
immediately after the advance with reference to the facts and
circumstances then prevailing, unless otherwise informed to
and agreed by the Bank in writing prior to such dates;
(b) no Default is outstanding or would result from the advance;
(c) no more than four (4) Drawings will be outstanding at the
relevant Drawdown Date; and
(d) the ACL Shares pledged to the Bank under the Pledge of
Accounts including any shares to be pledged to the Bank on the
Drawdown Date, have a Market Value of not less than 285% of
the Loan (corresponding to a Loan to Market Value ratio of
35%), provided, however, that this Clause 4.2.1 (d) shall only
apply if the Loan outstanding on the first day of an Interest
Period exceeds the Loan outstanding on the last day of the
preceding Interest Period.
9
5. DRAWDOWN
5.1 Commitment Period
Subject to the terms of this Agreement, Drawings will be made
available to the Borrower at any time during the Commitment Period
when requested by the Borrower. Any amount of the Commitment not
drawn down and outstanding on the last day of the Commitment Period
shall automatically be cancelled on that day. The first Drawdown
Date shall not be later than on 15 May 1997.
5.2 Drawdown Notice
Whenever the Borrower desires a Drawing to be made available to it
hereunder, it shall give a Drawdown Notice to the Bank,
appropriately completed, to be received not later than 09:00 a.m.
(Oslo time) two Banking Days prior to the requested Drawdown Date
of such Drawing specifying in respect of such Drawing:
(a) the requested Drawdown Date, being a Banking Day during the
Commitment Period;
(b) the amount of such Drawing, in one currency only, which:
(i) if the currency is NOK, shall be either (a) a minimum,
of NOK 5,000,0000 or (b) the balance of the Commitment
undrawn on the requested Drawdown Date; or
(ii) if the currency is USD, shall be the equivalent of (a)
a minimum of USD 750,000 or (b) the balance of the
Commitment undrawn on the requested Drawdown Date.
(c) the Interest Period for such Drawing determined in accordance
with Clause 8 (Interest Periods); and
(d) the payment instructions in compliance with Clause 10
(Payments).
10
Each Drawdown Notice shall be irrevocable and, subject to the terms
of this Agreement, the Borrower shall be bound to accept the
Drawing in accordance with the Drawdown Notice.
6. REPAYMENT
6.1 Repayment
The Borrower shall, subject to Clause 7, repay each Drawing on the
Repayment Date for the Drawing and shall repay all Drawings
outstanding under this Agreement in full on the Final Maturity
Date. No transfer of funds shall be required if the Repayment Date
of one Drawing falls on the same date as the Drawdown Date of a new
Drawing in the same amount and currency.
7. PREPAYMENT AND CANCELLATION
7.1 Voluntary cancellation
The Borrower may (without penalty or premium), by giving not less
than two Banking Days prior written notice to the Bank, cancel in
whole or in part the amount of the Commitment undrawn at the date
on which such cancellation is to be effective (but, if in part, in
an integral multiple of NOK 5,000,000 in each case).
7.2 Voluntary prepayment
The Borrower may, subject to Clause 7.3, by giving not less than
two Banking Days prior written notice to the Bank, prepay in whole
or in part, any Drawing made hereunder.
7.3 Miscellaneous provisions
7.3.1 Any notice of prepayment and/or cancellation under this Agreement
is irrevocable and shall specify the date on which the prepayment
or cancellation is to become effective and the amount to be prepaid
or cancelled.
11
7.3.2 All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and any amounts due in
respect of such prepayment under Clause 22.2 (Other indemnities)
but otherwise without premium or penalty.
7.3.3 No amount of the Commitment cancelled under this Agreement may
subsequently be reinstated unless agreed to in writing by the Bank.
8. INTEREST PERIODS
8.1 Selection
The Borrower shall select the first Interest Period for a Drawing
in the Drawdown Notice for that Drawing. Each Interest Period for a
Drawing will commence on its Drawdown Date and each Drawing shall
have one Interest Period only.
8.2 No overrunning
If an Interest Period in respect of a Drawing would otherwise
overrun the Final Maturity Date, it shall be shortened so that it
ends on the Final Maturity Date.
9. INTEREST
9.1 Interest rate
The rate of interest on each Drawing is the rate per annum
determined by the Bank to be the aggregate of the applicable:
(a) Margin; and
(b) (i) (in the case of a Drawing denominated in NOK) NIDR;
or
(ii) (in the case of a Drawing denominated in USD)
LIBOR.
9.2 Interest Due
Except as otherwise provided in this Agreement, accrued interest on
each Drawing is payable by the Borrower on the Interest Payment
Date in respect of such Drawing.
12
9.3 Default interest
9.3.1 If the Borrower fails to pay on the due date any amount payable
by it under this Agreement, it shall forthwith on demand by the
Bank pay default interest on the overdue amount from the due date
up to the date of actual payment at a rate to be determined by the
Bank as the aggregate sum of 3% per cent per annum, the Margin, and
the cost of funding to the Bank as set out in Clause 9.1 (b) above.
9.3.2 Default interest will be compounded at the end of each month.
9.4 Calculation
All interest shall be calculated on the actual number of days
elapsed and on the basis of a 360-day year.
10. PAYMENTS
10.1 Place
All payments by the Borrower under this Agreement shall be made to
the Bank to such account as the Bank may notify to the Borrower.
10.2 Funds
Payments under this Agreement to the Bank shall be made for value
on the due date at such times and, subject to Clause 10.3, in such
funds as the Bank may specify to the Borrower as being customary at
the time for the settlement of transactions in the relevant
currency in the place for payment.
10.3 Currency
10.3.1 A repayment or prepayment of a Drawing or any part of a Drawing as
well as payment of interest and fees is payable in the currency in
which the Drawing is denominated on its due date.
10.3.2 Interest is payable in the currency in which the relevant Drawing
is denominated.
13
10.3.3 Amounts payable in respect of costs, expenses, taxes and the like
are payable in the currency in which they are incurred.
10.3.4 Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in NOK.
10.3 Set-off and counterclaim
All payments made by the Borrower under this Agreement shall be
made without set-off of counterclaim.
10.4 Non-Banking Days
If a payment under this Agreement is due on a day which is not a
Banking Day, the due date for that payment shall instead be the
next Banking Day in the same calendar month provided that (i) if
there is no next Banking Day in the same calendar month or (ii) if
the day on which that payment was otherwise due was the Final
Maturity Date, the due date for that payment shall instead be the
preceding Banking Day.
11. OPTIONAL CURRENCY
11.1 Selection
The Borrower has an option to have a drawing be made in either NOK
or USD. The Borrower shall select the currency in which a Drawing
is to be denominated in the Drawdown Notice for that Drawing, and
only one currency may be selected for each Drawing.
11.2 Revocation of currency
Without prejudice to Clauses 13 (Market disruption) and 15
(Illegality), if before 10.00 a.m. (Oslo Time) on the Banking Day
before the commencement of an Interest Period the Bank determines
that:
(a) it is impracticable for the Bank using reasonable efforts to
fund the Drawing in USD during that Interest Period; or
14
(b) the advance or use of USD might contravene any law or
regulation,
the Bank shall give notice to the Borrower to that effect before
11.00 a.m. (Oslo time) on that day and, unless the Borrower before
12.00 a.m. (Oslo time) notifies the Bank that the Borrower will
cancel that Drawing, the Drawing shall be denominated in NOK during
that Interest Period.
12. TAXES
All payments by the Borrower under this Agreement shall be made
free and clear of and without deduction for or on account of any
taxes, except to the extent that the Borrower is required by law to
make payment subject to any taxes. If by requirement of law any tax
or amounts in respect of tax must be deducted or withheld from any
amounts payable or paid by the Borrower under this Agreement, the
Borrower shall pay such additional amounts as may be necessary to
ensure that the Bank receives (free from any liability in respect
of any such deduction or withholding) a net amount equal to the
full amount which it would have received had payment not been made
subject to tax or other deduction provided, however, that if the
Borrower is required to deduct or withhold taxes because of a
failure of Bank to provide the required documentation to preclude
such deduction or withholding, Borrower shall have no obligation to
pay such additional amounts. The Borrower shall promptly deliver to
the Bank any receipts, certificates or other proof evidencing the
amounts paid or payable in respect of any deduction or withholding
as aforesaid.
13. MARKET DISRUPTION
13.1 Market disruption
If, on or prior to a Quotation Date, the Bank determines that:
(a) adequate and fair means do not exist for ascertaining the
Offered Rate; or
(b) matching deposits may not be available to the Bank in
sufficient amounts to fund the Drawing for the relevant
Interest Period or the cost to the Bank of obtaining matching
deposits to fund the Drawing would be in excess of the Offered
Rate for the relevant Interest Period,
15
the Bank shall promptly notify the Borrower and the Bank of the
fact and that this Clause 13.1 is in operation.
13.2 Negotiations
13.2.1 If a notification under Clause 13.1 applies to a Drawing which has
not been made, that Drawing shall not be made. However, the
Borrower and the Bank shall, within five Banking Days of receipt of
the notification, enter into negotiations in good faith (which
neither the Borrower nor the Bank shall be obliged to continue for
a period of more than 30 days) with a view to agreeing an
alternative basis for the borrowing of that and any future Drawing.
14. INCREASED COSTS
If by reason of (i) changes in any existing law, rule or
regulation, or (ii) the adoption of any new law, rule or
regulation, or (iii) any change in the interpretation or
administration of (i) or (ii) above by any governmental authority,
or (iv) compliance with any directive or request from any
governmental authority (whether or not having the force of law)
and provided that such changes provided for above were not
reasonably known to the Bank at the date hereof:
(a) the Bank incurs a cost as a result of having entered into this
Agreement and/or as a result of performing its obligations
hereunder;
(b) there is an increase in the cost to the Bank of funding or
maintaining the Loan;
(c) the Bank becomes liable for any new taxes (other than tax on
or measured by overall net income) calculated by reference to
its participation in the Loan; or
(d) the Bank becomes subject to new or increased capital adequacy
or similar requirements which will have the effect of
increasing the amount of capital required or expected to be
maintained by the Bank based on the Bank's commitment in the
Loan,
16
then any such cost, liability or reduced return shall be payable by
the Borrower within 10 days after written demand by the Bank from
the date such request was received by the Borrower either in the
form of an increased Margin or in the form of an indemnification in
the amount conclusively (save in the case of manifest error)
determined by the Bank. Upon the Borrower's request, the Bank
hereby agrees to provide the Borrower with a certificate setting
forth in reasonable detail the calculation of amounts requested to
be paid under this provision.
15. ILLEGALITY
If it becomes illegal under any law applying to the Bank to make or
maintain the Loan, then the Banks commitment to make available the
Loan will end, and if any amount has been advanced, the Borrower
shall repay the Bank's participation in the Loan on the last day of
the then current Interest Period.
16. FORCE MAJEURE
The Bank shall not be liable for any failure to perform the whole
or any part of this Agreement resulting directly or indirectly from
action or inaction or purported action of any government or
governmental or local authority, or any strike, lockout, boycott
and blockade effected by or upon the Bank.
17. SECURITY
17.1 Security Instruments
The Loan together with all unpaid interest, default interest,
charges, expenses, costs and any derived liability whatsoever of
the Borrower towards the Bank in connection therewith shall be
secured by the Pledge of Accounts and the Guarantee.
17.2 Right of Set-off against ▇▇▇▇▇▇▇▇'s accounts with the Bank
In the event of non-payment of any amount hereunder when due, the
Bank shall, to the extent permitted by relevant law, have a
separate right of set-off in respect of any credit balance, in any
currency, on any accounts the Borrower might have
17
with the Bank from time to time towards satisfaction of any sum due
to the Bank hereunder.
18. REPRESENTATIONS AND WARRANTIES
The Borrower makes to the Bank the representations and warranties
set out hereunder:
18.1 Status
The Borrower and each of the Guarantors is a corporation, duly
organized and validly existing, under the laws of the jurisdiction
of its state of incorporation and each has the power to own its
assets and carry on its business as it is presently being
conducted.
18.2 Powers and authority
The Borrower and each of the Guarantors have the power to enter
into and perform, and have taken all necessary corporate action to
authorize the entry into, performance and delivery of, this
Agreement and the Security Documents and the transactions
contemplated thereunder.
18.3 Legal validity and enforceability
This Agreement and the Security Documents constitute the legal,
valid and binding obligations of the Borrower and the Guarantors as
the case might be, enforceable against them in accordance with
their terms and conditions, and no registration, filing, payment of
tax or fees or other formalities are necessary or desirable to
render this Agreement and the Security Documents enforceable
against any of them, except as enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' right or by general
principles of equity limiting the availability of equitable
remedies.
18.4 No-conflict
The entry into and performance by the Borrower and the Guarantors
of the transactions contemplated by this Agreement do not and will
not conflict with:
18
(a) any material law or regulation or judicial or official order;
(b) their respective articles of association; or
(c) any material document or agreement which is binding upon any
of them or any of their assets.
18.5 No Default
(a) No Default is outstanding or will result from the making of
any Drawing; and
(b) no other event is outstanding which constitutes or, with the
giving of notice or lapse of time might constitute an event of
default under any material document which is binding on the
Borrower, any of the Guarantors, or any of its assets.
18.6 Authorizations
All authorizations required in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, this Agreement have been obtained or effected (as
appropriate) and are in full force and effect.
18.7 Withholdings or deductions
Provided that Bank provides a completed, valid form 1001 (or such
successor form as may be required by law) to Borrower, Borrower is
not required to make any withholdings or deductions from any
payment to be made by the Borrower or the Guarantors under this
Agreement or the Security Documents.
18.8 Taxes
The Borrower has filed all tax returns required to be filed by it,
and paid or made adequate provisions for the payment of all
relevant taxes, charges and assessments.
19
18.9 Accounts
The audited consolidated accounts of the Borrower and each of the
Guarantors most recently delivered to the Bank:
(i) have (save as stated therein) been prepared in accordance with
United States generally accepted accounting principles
consistently applied; and
(ii) fairly represent the consolidated financial condition as of
the date to which they were drawn up,
and there has been no adverse change in the consolidated financial
condition of the Borrower or any of the Guarantors since the date
on which those accounts were drawn up, which might reasonably be
expected to have a material adverse effect on the ability of the
Borrower or any of the Guarantors to perform their respective
obligations under this Agreement or the Security Documents.
18.10 Litigation
No litigation, arbitration or administrative proceedings are
currently in progress or are pending or threatened against either
the Borrower or any of the Guarantors which would, if adversely
determined, be reasonably expected to have a material adverse
effect on the ability of the Borrower or any of the Guarantors to
perform their respective obligations under this Agreement and/or
the Security Documents.
18.11 Information
The information supplied by the Borrower or the Guarantors to the
Bank in relation to this Agreement:
(a) was true in all material respects when made;
(b) did not omit any information which, if disclosed, could
reasonably be expected to materially and adversely affect the
decision of a person considering whether to enter into this
Agreement; and
(c) nothing has occurred which renders the said information untrue
or misleading to an extent which, if disclosed, could
reasonably be expected
20
to materially and adversely affect the decision of a person
considering whether to enter into this Agreement.
18.12 Times for making representations and warranties
The representations and warranties set out in this Clause 18 are
made by the Borrower on the date of this Agreement and are deemed
to be repeated by the Borrower on the date of each Drawdown Notice
and the date on which the relevant amount is advanced with
reference to the facts and circumstances then existing, unless
otherwise informed to the Bank in writing prior to such dates.
19. COVENANTS
19.1 Positive Covenants
The Borrower undertakes and covenants that for as long as any
amounts remain outstanding under this Agreement, it shall:
(a) punctually pay all amounts due under this Agreement and
duly perform and observe all of its other obligations under
this Agreement and the Security Documents;
(b) give prompt written notice to the Bank of the following:
(i) any default or occurrence of any event which, with the
giving of notice or lapse of time or both, would
constitute a material default or breach presenting
liability in excess of USD 500,000 under any other
agreement to which the Borrower and/or any of the
Guarantors is a party; and
(ii) the occurrence of any event which might adversely
affect the ability of the Borrower and/or any of the
Guarantors to perform their respective obligations under
the Agreement and/or any of the Security Documents to
which any of them is a party.
(c) furnish the following to the Bank:
21
(i) as soon as reasonably practicable after the same are
available, copy of the Borrower's and each of the
Guarantors' unaudited quarterly financial statements
consisting of balance sheet and profit and loss
statements, and notes related thereto;
(ii) such financial and other information concerning the
Borrower and the Guarantors and their affairs as the
Bank may from time to time reasonably require.
(iii) any litigation or arbitration or administrative
proceeding before or of any court or governmental
authority which is instituted against the Borrower
and/or any of the Guarantors or any of their property
or assets, and keep the Bank advised on the status
thereof;
(d) promptly and duly pay all indebtedness and perform all
contractual obligations pursuant to any agreements to which
it is a party;
(e) if the Market Value of the ACL Shares owned by the Borrower at
any time is less than 222.2% per cent of the Loan
(corresponding to a Loan to Market Value ratio of 45%), within
three Banking Days after having received a request from the
Bank;
(i) provide additional security acceptable to the Bank to
ensure that the aggregate value of the ACL Shares plus
such additional security is at least equal to 250% per
cent of the Loan; or
(ii) prepay such amount of the Loan as may be necessary to
restore such ratio set out in (i) above;
(f) cause any dividend which is distributed to the Borrower in
1997 in respect of the ACL Shares to be paid to one of the
Interest Accounts and thereafter to be applied according to
agreement between the Borrower and the Bank;
(g) cause any amount of interest on its due date to be transferred
from the relevant Interest Account to the Bank, and the
Borrower hereby
22
authorizes the Bank to make such transfer on each Interest
Payment Date;
(h) maintain and procure that each of the Guarantors maintains,
with financially sound and reputable insurance companies,
funds or underwriters, adequate insurance with respect to
their respective properties and business against such
liabilities, casualties and contingencies and of such types
and in such amounts as are consistent with prudent business
practice.
19.2 Negative Covenants
The Borrower undertakes and covenants that during the Loan Period
it will not, without the prior written consent of the Banks:
(a) pay or declare any dividend or other distribution to its
shareholders; and
(c) except as contemplated by the Agreement, not (i) incur any
Financial Indebtedness, (ii) grant any Security Interest in
any of its assets and/or (iii) provide any loans, guarantees,
capital commitments or cash distributions of any kind.
20. DEFAULT
There shall be an Event of Default if:
20.1 Non-payment
The Borrower does not pay on the due date any amount payable by it
under this Agreement at the place at, and in the currency in, which
it is expressed to be payable, provided that if such failure to pay
has arisen as a consequence of an administrative or technical error
only, then such event shall not be an Event of Default unless such
failure continues for a period in excess of three Banking Days.
23
20.2 Breach of other obligations
The Borrower does not comply in any material respect with any
covenant or other provision of this Agreement (other than those
referred to in Clause 20.1), provided that if such non-compliance
is, in the opinion of the Bank, capable of remedy:
(i) the Bank notifies the Borrower of such non-compliance;
and
(ii) such non-compliance remains un-remedied for a period of
15 Banking Days (or in case of Clause 19.1 (e) five
Banking days).
20.3 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with this Agreement or the Security Documents or in any
document delivered by or on behalf of the Borrower or any of the
Guarantors under or in connection with this Agreement or the
Security Documents is incorrect in any material respect when made
or deemed to be made or repeated.
20.4 Cross-default
An event of default (or any event which with the giving of notice
or lapse of time would constitute such an event of default) occurs
in respect of a material obligation of the Borrower or any of the
Guarantors under any agreement presenting an aggregate liability
in excess of USD 500,000 in respect of each of them.
20.5 Insolvency
(i) The Borrower or any of the Guarantors is, or for the
purposes of law is deemed to be, unable to pay its debts
as they fall due, or insolvent, or admits inability or
intention not to pay its debts as they fall due; or
(ii) the Borrower or any of the Guarantors, by reason solely
of financial difficulties, begins negotiations with one
or more of its creditors with a view to the readjustment
or rescheduling of any of its indebtedness, or any step
is taken with a view to an arrangement with any
creditors of the Borrower or any of the Guarantors; or
24
(iii) a meeting of the Borrower or any of the Guarantors is
convened for the purpose of considering any resolution
for its winding-up or its administration or any such
resolution is passed, ordered, or requested; or
(iv) any other step (including petition ((other than. a
frivolous. or vexatious petition)), proposal or
convening a meeting) is taken with a view to the
administration, liquidation, winding-up, dissolution or
debt negotiations of the Borrower or any of the
Guarantors or any other insolvency proceedings involving
the Borrower or any of the Guarantors.
20.6 Appointment of receiver, etc.
Any liquidator, receiver, administrator or the like is appointed or
requested appointed in respect of the Borrower or any of the
Guarantors.
20.7 Cessation of business
The Borrower or any of the Guarantors ceases or threatens to
cease to carry on all or a substantial part of its business.
20.8 Illegality
It is or becomes unlawful for the Borrower or any of the Guarantors
to perform any of its material obligations under this Agreement.
20.9 Mergers
The Borrower or any of the Guarantors without the consent of the
Bank effects any demerger, merger or reconstruction which could
have a material adverse effect on the ability of the Borrower or
any of the Guarantors to perform its material obligations under
this Agreement.
20.10 Security
Any of the Security Documents for any reason other than following a
release thereof approved in writing by the Bank, cease to be valid
and in full force and effect at any time with their intended
priority.
25
20.11 Change of Ownership
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇., resident at Philadelphia, PA, USA, at any time
directly or indirectly ceases to own 50% of the shares in the
Borrower and each of the Guarantors.
20.12 Acceleration
20.12.1 On and at any time after the occurrence of an Event of Default
whilst such Event of Default is continuing unremedied and unwaived,
the Bank may by notice to the Borrower:
(a) without prejudice to any Drawing advanced hereunder cancel the
Commitments; and/or
(b) demand that all or part of the Drawings, together with accrued
interest, and all other amounts accrued under this Agreement
be immediately due and payable, whereupon they shall become
immediately due and payable.
20.12.2 The Bank shall without prejudice to any of the Bank's other rights,
at any time after the occurrence of an Event of Default with or
without notice to the Borrower, take such action as is available to
the Bank under the Agreement and the Security Documents.
21. FEES AND EXPENSES
21.1 Arrangement Fee
The Borrower shall on the first Drawdown Date or on 15 May 1997, if
earlier, pay to the Bank an arrangement fee of NOK 300,000.
21.2 Commitment Fee
21.2.1 The Borrower shall on the first Drawdown Date or on 15 May 1997, if
earlier, pay to the Bank an initial commitment fee of 0.75% per
annum of the total Commitment, calculated as of 3 April 1997 and
until the first Drawdown Date.
26
21.2.2 The Borrower shall pay a further commitment fee of 0.75% per annum
of the undrawn amount of the this Facility, quarterly in arrears at
successive three-monthly intervals after the date of this Agreement
(save that the last such period shall end on the Final Maturity
Date).
21.3 Expenses
The Borrower shall pay to the Bank on demand (whether or not the
Loan is ever advanced hereunder) all reasonable costs, expenses and
disbursements (including, but not limited to legal fees and
travelling expenses) incurred by the Bank or their agents in the
negotiation, preparation and completion of this Agreement and the
Security Documents (but not including amounts which are normal
administration costs and expenses incident to the performance of
agency duties hereunder) and the protection, preservation and
enforcement of any of their rights hereunder or thereunder.
22. INDEMNITIES
22.1 Currency indemnity
22.1.1 If the Bank receives an amount in respect of the Borrower's
liability under this Agreement or if that liability is converted
into a claim, proof, judgement or order in a currency other than
the currency in which the amount is expressed to be payable under
this Agreement, the Borrower shall indemnify the Bank as an
independent obligation against any loss or liability arising out of
or as a result of the conversion.
22.1.2 The Borrower waives any right it may have by law to pay any amount
under this Agreement in a currency other than that in which it is
expressed to be payable.
22.2 Other indemnities
The Borrower shall forthwith on demand indemnify the Bank against
any loss or liability (including funding breakage costs) which the
Bank properly incurs as a consequence of:
(a) the occurrence of any Event of Default;
27
(b) the operation of Clause 20.12 (Acceleration);
(c) any repayment or prepayment of principal or payment of an
overdue amount being made otherwise than on the last day of a
relevant Interest Period; or
(d) a Drawing not being made after the Borrower has delivered a
Drawdown Notice or a Drawing (or part of a Drawing) not being
prepaid in accordance with a notice of prepayment.
The liability of the Borrower in each case includes any loss of
margin or other loss or expense on account of funds borrowed,
contracted for or utilized to fund any amount payable under this
Agreement any amount repaid or prepaid or any Drawing but the
Borrower shall in no event be liable for any loss or expense which
arises as a consequence of the gross negligence or wilful default
of the Bank.
23. AMENDMENTS AND WAIVERS
23.1 Amendment procedure
Any term of this Agreement may only be amended or waived with the
written agreement of the Borrower and the Bank.
23.2 Exercise of remedies
The Bank's rights under this Agreement
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
28
24. CHANGES TO THE PARTIES
24.1 Transfer by the Borrower
The Borrower may not assign, transfer, novate or dispose of any of,
or any interest in, its rights and/or obligations under this
Agreement Subject to the written consent of the Bank (such consent
not to be unreasonably withheld), the Borrower may assign this
Agreement to an entity wholly owned by ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
24.2 Transfers by Bank
The Bank may at any time assign, transfer or novate any of its
rights and/or obligations in respect of this Agreement to any of
its subsidiaries or, with the prior written consent of the
Borrower, such consent not to be unreasonably withheld or delayed,
to another bank or financial institution.
25. SEVERABILITY
If a provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect the
validity or enforceability in that jurisdiction of any other
provision of this Agreement or the validity or enforceability in
other jurisdictions of that or any other provision of this
Agreement.
26. NOTICES
26.1 Giving of notices
All notices or other communications under or in connection with
this Agreement shall be given or made in writing, by letter or
telefax. Any such notice or communication addressed as provided in
Clause 26.2 will be deemed to be given or made as follows:
(i) if by letter, when delivered at the address of the
relevant party;
(ii) if by ▇▇▇▇▇▇▇, when received.
29
However, a notice given in accordance with the above but received
on a day which is not a Banking Day or after 5.00 p.m. in the place
of receipt will only be deemed to be given at 9.00 a.m. on the next
Banking Day in that place.
26.2 Addresses for notices
To the Bank. To the Borrower:
FINANSBANKEN ASA The Riverfront Development
Stortingsgt. 8 Corporation
P.O. Box 817, Sentrum King and Essex ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, U.S.A.
Attn: Shipping Department Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P.
Telefax: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ Telefax:▇▇▇▇ ▇▇▇ ▇▇▇▇
or such other address, telefax number and/or marked for such other
attention as the Bank may notify to the Borrower by not less than
five Banking Days' prior notice.
27. LANGUAGE
Any notice and all other documents given or provided under or in
connection with this Agreement shall be in English.
28. SERVICE OF PROCESS
Without prejudice to any other mode of service, the Borrower
hereby:
(a) irrevocably appoints ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Lund,
Tollbugt. 27, P.O. Box 413 Sentrum, N-0103 Oslo - Norway,
Attn.: ▇▇▇ ▇▇▇▇▇▇▇▇, as its agent for service of process
relating to any proceedings before the Norwegian courts in
connection with the Loan Agreement;
(b) agrees that failure by its process agent to notify it of the
process will not invalidate the service of process or the
proceedings concerned; and
30
(c) consents to the service of process relating to such
proceedings before the Norwegian courts by prepaid posting
of a copy of the process to the process agent appointed
herein.
29. GOVERNING LAW
This Agreement and any disputes as may arise in relation thereto
shall be interpreted in accordance with and governed by Norwegian
law.
30. JURISDICTION
The parties agree that the courts of Oslo, Norway have jurisdiction
to settle any disputes in connection with this Agreement and
accordingly submit to the non-exclusive jurisdiction of the Oslo
City court.
This Agreement has been entered into on the date stated at the beginning hereof.
The Borrower The Bank
The Riverfront Development Corporation Finansbanken ASA
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: V.P. Title: General Manager
31
SCHEDULE 1
FORM OF DRAWDOWN NOTICE
To: FINANSBANKEN ASA
Attn: International Loan Administration
Telefax No. ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
From: THE RIVERFRONT DEVELOPMENT CORPORATION as Borrower
Date: , 199
---------------- -
NOK 60,000,000 Facility Agreement dated_____April, 1997 (the "Agreement")
We refer to Clause ___ of the Agreement. Terms used in this Drawdown Notice
have the same meanings as in the Agreement.
1. We wish to draw a Drawing as follows
(a) Drawdown Date:_________________
(b) Amount and Currency of the Drawing:________________
(c) Interest Period:___________________
(d) Instructions for payment of the Drawing:___________________
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Drawdown Notice.
The Riverfront Development Corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: V.P.
32
SCHEDULE
SCHEDULE 2
CONDITION PRECEDENT DOCUMENTS
1. A certified copy of the Certificate of Incorporation and Articles of
Association of the Borrower and each of the Guarantors.
2. An original Certificate of Good Standing of the Borrower and each of the
Guarantors dated not earlier than 30 days prior to the date of this
Agreement.
3. A certified copy or extract of the resolution of the board of directors
of the Borrower and each of the Guarantors approving the terms of, and
the transactions contemplated by, this Agreement and the Security
Documents and resolving the execution of the same by the Borrower or the
given Guarantor as the case may be;
4. An original power of attorney executed by each of the Borrower and the
Guarantors authorizing specified persons to sign and/or dispatch all
documents and notices to be signed and/or dispatched by it under or in
connection with this Agreement and/or the Security Documents.
5. An original certificate from the Borrower's legal counsel:
(a) certifying that the documents in 1, 2, 3 and 4 above are true
and correct originals, or copies or extracts of original
documents, up to date, in full force and effect and that they
have not been revoked or amended; and
(b) containing a specimen of the signature of each person authorized
by the resolution referred to in 4 above.
6. The Security Documents, duly executed by the Borrower and the Guarantors
as appropriate
7. Written confirmation from VPC and/or VPS (as the case may be) that the
ACL Shares have been duly recorded as pledged to the Bank with first
priority.
8. A legal opinion from ▇▇▇▇▇▇▇, Rein & Co. regarding matters of Norwegian
law from Pepper, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP regarding matters of New Jersey,
Pennsylvania, Delaware and U.S. Federal law, ▇▇▇▇▇ KB regarding matters
of Swedish law, in a form and substance satisfactory to the Bank.
33
SCHEDULE
SCHEDULE 3
FORM OF PLEDGE OF ACCOUNTS
This (the "Pledge") is made on the __th day of April 1997 between:
THE RIVERFRONT DEVELOPMENT CORPORATION, a New Jersey corporation, c/▇
▇▇▇▇ Cargo System, Inc., P.O. Box 8698, Philadelphia, P.A. 19101, U.S.A.
(the "Pledgor")
and
FINANSBANKEN ASA, Stortingsgt. 8, P.O. Box. ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇ (the "Pledgee").
WHEREAS:
(A) By a loan agreement dated the 15th day of April 1997 (the
"Loan Agreement") made between the Pledgor as "Borrower" and the
Pledgee as "Bank", the Bank has agreed, subject to the terms
and conditions set forth therein to make available to the
Borrower a multi-currency revolving credit facility in the
maximum principal amount of NOK 60,000,000 or USD equivalent
(the "Loan");
(B) Pursuant to Clause 17.1 of the Loan Agreement, the Borrower
shall, as a condition precedent to the advance of the Loan, in
order to secure the repayment of the Loan and any other
Outstanding Indebtedness, and to secure the due performance and
compliance with all of the agreements, covenants and conditions
of the Loan Agreement, pledge to the Bank the ACL Shares from
time to time owned by the Borrower; and
(C) Unless otherwise defined in the Pledge or the context otherwise
requires, all words and expressions defined in the Loan
Agreement shall have the same meaning when used herein.
NOW THEREFORE:
34
1. In order to secure the repayment of the Loan and any other Outstanding
Indebtedness and to secure the due performance and compliance with all
of the agreements, covenants and conditions of the Loan Agreement, the
Pledgor hereby grants to the Pledgee a first priority pledge over the
Pledgor's VPS Account no. 0968004580 in Norway administrated by the
Pledgee and the Pledgor's VPC Account no. 000070670455 in Sweden
administrated by SE-Banken (together, the "Pledged Accounts") which
shall include all securities from time to time registered on the Pledged
Accounts.
2. Within 10 Banking Days after the annual shareholders meeting of ACL, the
Pledgor shall register in the VPS Account all of its ACL Shares,
including but not limited to any ACL Shares registered in the VPC
Account or subsequently acquired by the Pledgor.
3. Save as provided in Clause 2, the Pledgor is not entitled to transfer
any securities from the Pledged Accounts without the prior written
consent of the Pledgee (such restriction to be registered on the Pledged
Accounts).
4. Upon the occurrence of an Event of Default under the Loan Agreement, the
Pledgee shall be entitled to seek enforcement directly in the Pledged
Accounts according to applicable law, including but not limited to
selling all securities registered on the Pledged Accounts through an
independent broker in accordance with the Norwegian Enforcement Act,
section 1-3, second paragraph, and applying the proceeds thereof to such
of the obligations of the Borrower under the Loan Agreement as the
Pledgee may think fit.
5. The Pledgor and the Pledgee shall promptly notify VPS and/or VPC (as
the case may be) and the approporiate stock exchange authorities in
Norway of the pledge of the ACL Shares made by Pledgor to the Pledgee
herein.
6. An irrevocable power of attorney shall be registered on the VPS Account
authorizing the Pledgee to administrate the VPS Account and to seek
enforcement directly in the VPS Accounts.
7. This Pledge shall be governed by Norwegian law and the Pledgee
irrevocably submits to the non-exclusive jurisdiction of the Norwegian
courts with Oslo City Court as due legal venue. For such purposes, the
Pledgor hereby appoints
35
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Lund, Tollbugt. 27, P.O. Box 413 Sentrum,
N-0103 Oslo - Norway, Attn.: ▇▇▇ ▇▇▇▇▇▇▇▇ as its agent for service of
process.
This Pledge has been executed on the date and year first above written.
THE RIVERFRONT DEVELOPMENT FINANSBANKEN ASA
CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------ -------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: V.P. Title: General Manager
36
SCHEDULE 4
FORM OF GUARANTEE
This Guarantee, (the "Guarantee") is given on this _ day of April 1997, by:
▇▇▇▇ ▇▇▇▇▇▇▇ AND WAREHOUSING SYSTEM, INC., __________________________
USA;
and
▇▇▇▇ CARGO SYSTEM, INC., ________________________________________________ USA
(together, the "Guarantors")
in favour of
FINANSBANKEN ASA, Stortingsgt. 8, P.O. Box. 817 Sentrum, N-0104, Oslo, Norway
(the "Bank").
WHEREAS:
(A) By a loan agreement dated the ___ day of April 1997 (the "Loan
Agreement") made between The Riverfront Development Corporation as
"Borrower, and the Bank as "Bank," the Bank has agreed, subject to the
terms and conditions set forth therein, to make available to the Borrower
a multi-currency revolving credit facility in the maximum principal
amount of NOK 60,000,000 or USD equivalent (the "Loan"); and
(B) Pursuant to Clause 17.1 of the Loan Agreement, the Borrower shall, as a
condition precedent to the advance of the Loan, in order to secure the
repayment of the Loan and any other Outstanding Indebtedness, and to
secure the due performance and compliance with all of the agreements,
covenants and conditions of the Loan Agreement, procure that the
Guarantors give to the Bank a joint and several guarantee for the
obligations of the Borrower substantially in the form hereof.
37
NOW THEREFORE:
1. CONSTRUCTION
(A) Unless otherwise defined in this Guarantee or the context otherwise
requires, all words and expressions defined in the Loan Agreement shall
have the same meaning when used herein.
(B) References to Clauses are to be construed as references to clauses of
this Guarantee unless otherwise stated.
(C) References to (or to any specified provision of) this Guarantee or any
other document shall be construed as references to this Guarantee, that
provision or that document as from time to time amended; and
(D) Words importing the plural shall include the singular and vice versa.
2. GUARANTEE AND INDEMNITY
(A) In order to secure the payment of the Outstanding Indebtedness in
accordance with the provisions of the Loan Agreement each Guarantor, as
primary obligor as and for its own debt and not merely as surety, joint
and severally with the Borrower and jointly and severally with the other
Guarantor, hereby undertakes to the Bank to be responsible for and
hereby guarantees to the Bank the due and punctual payment by the
Borrower to the Bank (as and when due by acceleration, demand or
otherwise howsoever) of the Outstanding Indebtedness and every part
thereof.
(B) Each Guarantors unconditionally and irrevocable undertakes to,
immediately on written demand by the Bank from time to time, make payment
in accordance with its obligations under Clause 2 (A) where such demand
is accompanied by a statement of the Bank that a payment has fallen due
in respect of the Outstanding Indebtedness by the Borrower, that the
Borrower has failed to make such payment when due and that notice of such
non-payment has been issued to the Borrower. Each of such payments so
demanded shall be made by the Guarantor to such account as the Bank may
from time to time notify in writing.
38
3. LIMITATION
There is no limit to the number of claims that may be made by the Bank
under this Guarantee.
4. SURVIVAL OF GUARANTORS' LIABILITY
The Guarantors' liability to the Bank under this Guarantee shall not be
discharged, impaired or otherwise affected by reason of any of the
following events or circumstances (regardless of whether any such events
or circumstances occur with or without the Guarantors' knowledge or
consent):-
(a) any time, forbearance or other indulgence given or agreed by the
Bank with the Borrower in respect of any of its respective
obligations under the Loan Agreement or the Security Documents;
(b) any legal limitation, disability or incapacity of the Borrower;
(c) any invalidity, irregularity, unenforceability, imperfection or
avoidance of or any defect in any security granted by, or the
obligations of any party to the Loan Agreement or the Security
Documents, or any amendment to or variation thereof, or of any
other document or security constituted therein;
(d) the liquidation, bankruptcy or dissolution (or proceedings
analogous thereto) or the appointment of a receiver for the
Borrower or any other party to the Loan Agreement and any of the
Security Documents, or the occurrence of any circumstances
whatsoever affecting the liability of any party to discharge its
respective obligations under the Loan Agreement or any of the
Security Documents;
(e) any challenge, dispute or avoidance by any liquidator of the
Borrower in respect of any claim by a Guarantor by right of
subrogation in any such liquidation;
(f) any release, discharge, renewal, amendment, extension, compromise
exchange or realization of any security, obligation or term of the
Loan Agreement and the Security Documents, or as provided under or
by virtue
39
thereof or the provision to the Bank at any time of any further
security for the obligations of the Borrower under the Loan
Agreement;
(g) any failure on the part of the Bank (whether intentional or not)
to take or perfect any security agreed to be taken under or in
relation to any of the Loan Agreement and the Security Documents;
or
(h) any other act, matter or thing (save for repayment in full of the
Outstanding Indebtedness) which might otherwise constitute a legal
discharge of the obligations of the Guarantor under this
Guarantee.
5. EXPENSES
Each Guarantor further agrees to pay to the Bank on demand on a full
indemnity basis all commissions, charges, costs and expenses (including
the reasonable fees and expenses of legal advisors) incurred by the Bank.
in the preservation and enforcement of any of the rights of the Bank
hereunder.
6. CONTINUING GUARANTEE
This Guarantee shall be:
(a) a continuing guarantee remaining in full force and effect until
payment in full has been received by the Bank of each and every
part and the ultimate balance of the Outstanding Indebtedness; and
(b) in addition to and not in substitution for or in derogation of any
other security held by the Bank from time to time in respect of
the Outstanding Indebtedness or any part thereof.
7. UNDERTAKINGS
Each Guarantor undertakes to the Bank that;-
(a) following receipt by either Guarantor of a notice from the Bank of
the occurrence of any Event of Default under the Loan Agreement,
the Guarantor
40
will not make demand for or claim payment of any moneys due to the
Guarantor from the Borrower, or exercise any other right or remedy
to which the Guarantor is entitled in respect of such moneys
unless and until all moneys owing or due and payable by the
Borrower or the Guarantors to the Bank have been irrevocably paid
in full;
(b) if the Borrower shall become the subject of an insolvency
proceeding or shall be wound up or liquidated, the Guarantor shall
not (unless so instructed by the Bank and then only on condition
that the Guarantor hold the benefit of any claim in such
insolvency or liquidation to pay any amounts recovered thereunder
to the Bank) prove any such insolvency, winding-up or liquidation
until all moneys owing or due and payable by the Borrower or the
Guarantor to the Bank have been irrevocably paid in full;
(c) if the Guarantor, in breach of paragraph (a) and (b) above of this
Clause 7 receives or recovers any money pursuant to any such
exercise, claim or proof as therein referred to, such money shall
be held by the Guarantor for the Bank to apply the same as if they
were moneys received or recovered by the Bank under this
Guarantee;
(d) the Guarantor has not taken and will not take from the Borrower
any security whatsoever for the moneys hereby guaranteed; and
(e) all payments to be made hereunder shall be made in immediately
available funds without set-off or counter-claim and free and
clear of and without deduction for or on account of any present or
future taxes of any nature now or hereafter imposed, levied,
collected, withheld, deducted or assessed by any taxing and/or
governmental authority whatsoever or wheresoever unless the
Guarantor is compelled by law to deduct such taxes, provided,
however, that if Guarantor is required to deduct or withhold taxes
because of a failure of Bank to provide the required documentation
to preclude such deduction or withholding, Guarantor shall have no
obligation to pay such additional amounts. In that event all such
taxes shall be borne by the Guarantor or, if under the provisions
of any applicable law this stipulation cannot be applied, then the
Guarantor shall increase the payments to the Bank so that the net
amounts received by the Bank shall be equal to the full amounts
which the Bank would have received had payment not been made
subject to such taxes. As used in this sub-clause, the term
"taxes" includes all levies, imposts,
41
duties, charges, fees, deductions and withholdings whatsoever and
any restriction or condition resulting in a charge. For the
avoidance of doubt, the Guarantor shall under no circumstances be
liable for any taxes on the Bank's overall net income.
8. EXCLUSION OF GUARANTORS' RIGHTS
Until the Outstanding Indebtedness has been paid in full, the Guarantors
shall not be entitled to share in or succeed to or benefit from (by
subrogation or otherwise) any rights which the Bank may have in respect
of the Outstanding Indebtedness or any security therefor or all or any of
the proceeds of such rights or security.
9. ENFORCEMENT
(a) The Bank shall not be obliged before taking steps to enforce this
Guarantee:
(i) to obtain judgement against the Borrower or any other party
in any court or other tribunal;
(ii) to make or file any claim in a bankruptcy or liquidation of
the Borrower or any other party; or
(iii) other than demand payment from the Borrower, to take any
action whatsoever against any the Borrower or any other
party under any of the Loan Agreement and the Security
Documents; and
the Guarantors hereby waive all such formalities or rights to
which they would otherwise be entitled or which the Bank would
otherwise first be required to satisfy or fulfil before proceeding
or making demand against the Guarantors hereunder;
(b) the Bank may take such action as the Bank acting reasonably, but
in its own discretion may consider appropriate against any other
person or parties to recover moneys due and payable in respect of
the obligations of the Borrower under the Loan Agreement and the
Security Documents, the Guarantors,
42
however, remaining liable under this Guarantee for payment and
discharge of all moneys hereby guaranteed; and
(c) any release, discharge or settlement between a Guarantor and the
Bank in relation to this Guarantee shall be conditional upon no
right, security, disposition or payment to the Bank by the
Guarantor and any other person being void, set aside or ordered to
be refunded pursuant to any enactment or law relating to breach of
duty by any person, bankruptcy, liquidation, administration,
protection from creditors generally or insolvency or for any
reason.
If any such right, security, disposition or payment is void or at any
time so set aside or ordered to be refunded the Bank shall be entitled
subsequently to enforce this Guarantee against a Guarantor
notwithstanding any return of this Guarantee to the Guarantor and as if
such release, discharge or settlement had not occurred and any such
security, disposition or payment had not been made.
10. MISCELLANEOUS
10.1 Any provisions contained herein which are prohibited by or deemed
unlawful or unenforceable under any applicable law shall, to the extent
required by such law, be ineffective without modifying the remaining
provisions hereof. Where however the provisions of any such applicable
law may be waived, they are hereby waived by the Guarantors to the
fullest extent permitted by such law with the intent that this Guarantee
shall be valid, binding and enforceable in accordance with its terms.
10.2 No failure or delay by the Bank in exercising any right, power or
privilege hereunder and no course of dealing between any person and the
Bank shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. Subject always to the
maximum amount recoverable by the Bank pursuant to or in relation to the
Loan Agreement being the amount of the Outstanding Indebtedness, the
rights and remedies herein are cumulative and not exclusive of any rights
or remedies which the Bank would otherwise have.
43
11. ASSIGNMENT
The Bank may assign or transfer its rights hereunder to any person to
whom the rights and obligations of the Bank under the Loan Agreement are
wholly or partially assigned or transferred.
12. NOTICES
12.1 Except as otherwise provided herein each notice, request, demand or other
communication or document to be given or made under this Guarantee shall
be given in writing but unless otherwise stated, may be made by telefax
12.2 Any notice, demand or other communication to be made or delivered by any
party pursuant to this Guarantee shall (unless the addressee has by
fifteen (15) days' written notice to that party specified another
address) be made or delivered:-
(a) If to the Bank:
FINANSBANKEN ASA
Attn: Shipping Department
Stortingsgt. 8
P.O. Box 817
N-0104 Oslo, Norway
Telefax: (▇▇) ▇▇ ▇▇ ▇▇▇▇
(b) If to the Guarantors:
▇▇▇▇ HAULING AND ▇▇▇▇ CARGO SYSTEM, INC.
WAREHOUSING. SYSTEM, INC.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P. Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ and Essex Streets King and Essex Streets
Gloucester City, NJ 08030/USA Gloucester City, NJ 08030/USA
Telefax:▇▇▇-▇▇▇-▇▇▇▇ Telefax:▇▇▇-▇▇▇-▇▇▇▇
44
13. GOVERNING LAW - JURISDICTION
This Guarantee shall be governed by Norwegian law and the Guarantors
irrevocably submit to the non-exclusive jurisdiction of the Norwegian
courts with Oslo City Court as due legal venue. For such purposes, both
of the Guarantors hereby appoint ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Greve, Lund,
Tollbugt. 27, P.O. Box 413, Sentrum, N-0103 Oslo - Norway, Attn.: ▇▇▇
▇▇▇▇▇▇▇▇, as their agent for service of process.
This Guarantee has been executed by the Guarantors on the day first written
above.
▇▇▇▇ HAULING AND WAREHOUSING SYSTEM, INC. ▇▇▇▇ CARGO SYSTEM, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------- -------------------------
Title: V.P Title: V.P
-------------------- ------------------------
45
PLEDGE OF ACCOUNTS
This (the "Pledge") is made on the 16th day of April 1997 between:
THE RIVERFRONT DEVELOPMENT CORPORATION, a New Jersey corporation, c/▇ ▇▇▇▇
Cargo System, Inc., P.O. Box 8698, Philadelphia, P.A. 19101, U.S.A. (the
"Pledgor")
and
FINANSBANKEN ASA, Stortingsgt. 8, P.O. Box 817, Sentrum, N-0104, Oslo, Norway
(the "Pledgee").
WHEREAS:
(A) By a loan agreement dated the 16th day of April 1997 (the "Loan Agreement")
made between the Pledgor as "Borrower" and the Pledgee as "Bank", the Bank
has agreed, subject to the terms and conditions set forth therein to make
available to the Borrower a multi-currency revolving credit facility in the
maximum principal amount of NOK 60,000,000 or USD equivalent (the "Loan");
(B) Pursuant to Clause 17.1 of the Loan Agreement, the Borrower shall, as a
condition precedent to the advance of the Loan, in order to secure the
repayment of the Loan and any other Outstanding Indebtedness, and to secure
the due performance and compliance with all of the agreements, covenants
and conditions of the Loan Agreement, pledge to the Bank the ACL Shares
from time to time owned by the Borrower; and
(C) Unless otherwise defined in the Pledge or the context otherwise requires,
all words and expressions defined in the Loan Agreement shall have the same
meaning when used herein.
NOW THEREFORE:
1. In order to secure the repayment of the Loan and any other Outstanding
Indebtedness and to secure the due performance and compliance with all of
the agreements, covenants and conditions of the Loan Agreement, the Pledgor
hereby
46
grants to the Pledgee a first priority pledge over the Pledgor's VPS
Account no. 0968004580 in Norway administrated by the Pledgee and the
Pledgor's VPC Account no. 000070670455 in Sweden administrated by SE-Banken
(together, the "Pledged Accounts") which shall include all securities from
time to time registered on the Pledged Accounts.
2. Within 10 Banking Days after the annual shareholders meeting of ACL, the
Pledgor shall register in the VPS Account all of its ACL Shares, including
but not limited to any ACL Shares registered in the VPC Account or
subsequently acquired by the Pledgor.
3. Save as provided in Clause 2, the Pledgor is not entitled to transfer any
securities from the Pledged Accounts without the prior written consent of
the Pledgee (such restriction to be registered on the Pledged Accounts).
4. Upon the occurrence of an Event of Default under the Loan Agreement, the
Pledgee shall be entitled to seek enforcement directly in the Pledged
Accounts according to applicable law, including but not limited to selling
all securities registered on the Pledged Accounts through an independent
broker in accordance with the Norwegian Enforcement Act, section 1-3,
second paragraph, and applying the proceeds thereof to such of the
obligations of the Borrower under the Loan Agreement as the Pledgee may
think fit.
5. The Pledgor and the Pledgee shall promptly notify VPS and/or VPC (as the
case may be) and the approporiate stock exchange authorities in Norway of
the pledge of the ACL Shares made by Pledgor to the Pledgee herein.
6. An irrevocable power of attorney shall be registered on the VPS Account
authorizing the Pledgee to administrate the VPS Account and to seek
enforcement directly in the VPS Accounts.
7. This Pledge shall be governed by Norwegian law and the Pledgee irrevocably
submits to the non-exclusive jurisdiction of the Norwegian courts with Oslo
City Court as due legal venue. For such purposes, the Pledgor hereby
appoints Thommessen, ▇▇▇▇▇▇▇▇, Lund, Tollbugt. 27, P.O. Box 413, Sentrum,
N-0103 Oslo - Norway, Attn.: ▇▇▇ ▇▇▇▇▇▇▇▇ as its agent for service of
process.
This Pledge has been executed on the date and year first above written.
47
THE RIVERFRONT DEVELOPMENT FINANSBANKE ASA
CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: V.P. Title: General Manager
48
GUARANTEE
This Guarantee, (the "Guarantee") is given on this 16th day of April 1997, by:
▇▇▇▇ CARGO SYSTEM, INC., Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P.
USA; King and Essex Streets
Gloucester City, NJ 08030/USA
and
▇▇▇▇ CARGO SYSTEM, INC., Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P.
(together, the "Guarantors") King and Essex Streets
Gloucester City, NJ 08030/USA
in favour of
FINANSBANKEN ASA, Stortingsgt. 8, P.O. Box 817, Sentrum, N-0104, Oslo, Norway
(the "Bank").
WHEREAS:
(A) By a loan agreement dated the 16th day of April 1997 (the "Loan Agreement")
made between The Riverfront Development Corporation as "Borrower" and the
Bank as "Bank", the Bank has agreed, subject to the terms and conditions
set forth therein, to make available to the Borrower a multi-currency
revolving credit facility in the maximum principal amount of
NOK 60,000,0000 or USD equivalent (the "Loan"); and
(B) Pursuant to Clause 17.1 of the Loan Agreement, the Borrower shall, as a
condition precedent to the advance of the Loan, in order to secure the
repayment of the Loan and any other Outstanding Indebtedness, and to secure
the due performance and compliance with all of the agreements, covenants
and conditions of the Loan Agreement, procure that the Guarantors give to
the Bank a joint and several guarantee for the obligations of the Borrower
substantially in the form hereof.
49
NOW THEREFOR:
1. CONSTRUCTION
(A) Unless otherwise defined in this Guarantee or the context otherwise
requires, all words and expressions defined in the Loan Agreement shall
have the same meaning when used herein.
(B) References to Clauses are to be construed as references to clauses of this
Guarantee unless otherwise stated.
(C) References to (or to any specified provision of) this Guarantee or any
other document shall be construed as references to this Guarantee, that
provision or that document as from time to time amended; and
(D) Words importing the plural shall include the singular and vice versa.
2. GUARANTEE AND INDEMNITY
(A) In order to secure the payment of the Outstanding Indebtedness in
accordance with the provisions of the Loan Agreement each Guarantor, as
primary obligor as and for its own debt and not merely as surety, joint and
severally with the Borrower and jointly and severally with the other
Guarantor, hereby undertakes to the Bank to be responsible for and hereby
gurantees to the Bank the due and punctual payment by the Borrower to the
Bank (as and when due by acceleration, demand or otherwise howsoever) of
the Outstanding Indebtedness and every part thereof.
(B) Each Guarantors unconditionally and irrevocable undertakes to, immediately
on written demand by the Bank from time to time, make payment in accordance
with its obligations under Clause 2 (A) where such demand is accompanied by
a statement of the Bank that a payment has fallen due in respect of the
Outstanding Indebtedness by the Borrower, that the Borrower has failed to
make such payment when due and that notice of such non-payment has been
issued to the Borrower. Each of such payments so demanded shall be made by
the Guarantor to such account as the Bank may from time to time notify in
writing.
50
3. LIMITATION
There is no limit to the number of claims that may be made by the Bank
under this Guarantee.
4. SURVIVAL OF GUARANTORS' LIABILITY
The Guarantors' liability to the Bank under this Guarantee shall not be
discharged, impaired or otherwise affected by reason of any of the
following events or circumstances (regardless of whether any such events or
circumstances occur with or without the Guarantors' knowledge or consent):-
(a) any time, forbearance or other indulgence given or agreed by the Bank
with the Borrower in respect of any of its respective obligations
under the Loan Agreement or the Security Documents;
(b) any legal limitation, disability or incapacity of the Borrower;
(c) any invalidity, irregularity, unenforceability, imperfection or
avoidance of or any defect in any security granted by, or the
obligations of any party to the Loan Agreement or the Security
Documents, or any amendment to or variation thereof, or of any other
document or security constituted therein;
(d) the liquidation, bankruptcy or dissolution (or proceedings analogous
thereto) or the appointment of a receiver for the Borrower or any
other party to the Loan Agreement and any of the Security Documents,
or the occurrence of any circumstances whatsoever affecting the
liability of any party to discharge its respective obligations under
the Loan Agreement or any of the Security Documents;
(e) any challenge, dispute or avoidance by any liquidator of the Borrower
in respect of any claim by a Guarantor by right of subrogation in any
such liquidation;
(f) any release, discharge, renewal, amendment, extension, compromise
exchange or realization of any security, obligation or term of the
Loan Agreement and the Security Documents, or as provided under or by
virtue
51
thereof or the provision to the Bank at any time of any further
security for the obligations of the Borrower under the Loan Agreement;
(g) any failure on the part of the Bank (whether intentional or not) to
take or perfect any security agreed to be taken under or in relation
to any of the Loan Agreement and the Security Documents; or
(h) any other act, matter or thing (save for repayment in full of the
Outstanding Indebtedness) which might otherwise constitute a legal
discharge of the obligations of the Guarantor under this Guarantee.
5. EXPENSES
Each Guarantor further agrees to pay to the Bank on demand on a full
indemnity basis all commissions, charges, costs and expenses (including the
reasonable fees and expenses of legal advisors) incurred by the Bank in the
preservation and enforcement of any of the rights of the Bank hereunder.
6. CONTINUING GUARANTEE
This Guarantee shall be:-
(a) a continuing guarantee remaining in full force and effect until
payment in full has been received by the Bank of each and every
part and the ultimate balance of the Outstanding Indebtedness; and
(b) In addition to and not in substitution for or in derogation of any
other security held by the Bank from time to time in respect of the
Outstanding Indebtedness or any part thereof.
7. UNDERTAKINGS
Each Guarantor undertakes to the Bank that;-
(a) following receipt by either Guarantor of a notice from the Bank of the
occurrence of any Event of Default under the Loan Agreement, the
Guarantor
52
will not make demand for or claim payment of any moneys due to the
Guarantor from the Borrower, or exercise any other right or remedy to
which the Guarantor is entitled in respect of such moneys unless and
until all moneys owing or due and payable by the Borrower or the
Guarantors to the Bank have been irrevocably paid in full;
(b) if the Borrower shall become the subject of an insolvency proceeding
or shall be wound up or liquidated, the Guarantor shall not (unless so
instructed by the Bank and then only on condition that the Guarantor
hold the benefit of any claim in such insolvency or liquidation to pay
any amounts recovered thereunder to the Bank) prove any such
insolvency, winding-up or liquidation until all moneys owing or due
and payable by the Borrower or the Guarantor to the Bank have been
irrevocably paid in full;
(c) if the Guarantor, in breach of paragraph (a) and (b) above of this
Clause 7 receives or recovers any money pursuant to any such exercise,
claim or proof as therein referred to, such money shall be held by the
Guarantor for the Bank to apply the same as if they were moneys
received or recovered by the Bank under this Guarantee;
(d) the Guarantor has not taken and will not take from the Borrower any
security whatsoever for the moneys hereby guaranteed; and
(e) all payments to be made hereunder shall be made in immediately
available funds without set-off or counter-claim and free and clear of
and without deduction for or on account of any present or future taxes
of any nature now or hereafter imposed, levied, collected, withheld,
deducted or assessed by any taxing and/or governmental authority
whatsoever or wheresoever unless the Guarantor is compelled by law to
deduct such taxes, provided, however, that if Guarantor is required to
deduct or withhold taxes because of a failure of Bank to provide the
required documentation to preclude such deduction or withholding,
Guarantor shall have no obligation to pay such additional amounts. In
that event all such taxes shall be borne by the Guarantor or, if under
the provisions of any applicable law this stipulation cannot be
applied, then the Guarantor shall increase the payments to the Bank so
that the net amounts received by the Bank shall be equal to the full
amounts which the Bank would have received had payment not been made
subject to such taxes. As used in this sub-clause, the term "taxes"
includes all levies, imposts,
53
duties, charges, fees, deductions and withholdings whatsover and any
restriction or condition resulting in a charge. For the avoidance of
doubt, the Guarantor shall under no circumstances be liable for any
taxes on the Bank's overall net income.
8. EXCLUSION OF GUARANTORS' RIGHTS
Until the Outstanding Indebtedness has been paid in full, the Guarantors
shall not be entitled to share in or succeed to or benefit from (by
subrogation or otherwise) any rights which the Bank may have in respect of
the Outstanding Indebtedness or any security therefor or all or any of the
proceeds of such rights or security.
9. ENFORCEMENT
(a) The Bank shall not be obliged before taking steps to enforce this
Guarantee:-
(i) to obtain judgement against she Borrower or any other party in
any court or other tribunal;
(ii) to make or file any claim in a bankruptcy or liquidation of the
Borrower or any other party; or
(iii) other than demand payment from the Borrower, to take any action
whatsoever against any the Borrower or any other party under any
of the Loan Agreement and the Security Documents; and
the Guarantors hereby waive all such formalities or rights to which
they would otherwise be entitled or which the Bank would otherwise
first be required to satisfy or fulfill before proceeding or making
demand against the Guarantors hereunder;
(b) the Bank may take such action as the Bank acting reasonably, but in
its own discretion may consider appropriate against any other person
or parties to recover moneys due and payable in respect of the
obligations of the Borrower under the Loan Agreement and the Security
Documents, the Guarantors,
54
however, remaining liable under this Guarantee for payment and
discharge of all moneys hereby guaranteed; and
(c) any release, discharge or settlement between a Guarantor and the Bank
in relation to this Guarantee shall be conditional upon no right,
security, disposition or payment to the Bank by the Guarantor and any
other person being void, set aside or ordered to be refunded pursuant
to any enactment or law relating to breach of duty by any person,
bankruptcy, liquidation, administration, protection from creditors
generally or insolvency or for any reason.
If any such right, security, disposition or payment is void or at any time
so set aside or ordered to be refunded the Bank shall be entitled
subsequently to enforce this Guarantee against a Guarantor notwithstanding
any return of this Guarantee to the Guarantor and as if such release,
discharge or settlement had not occurred and any such security, disposition
or payment had not been made.
1O. MISCELLANEOUS
10.1 Any provisions contained herein which are prohibited by or deemed unlawful
or unenforceable under any applicable law shall, to the extent required by
such law, be ineffective without modifying the remaining provisions hereof.
Where however the provisions of any such applicable law may be waived, they
are hereby waived by the Guarantors to the fullest extent permitted by such
law with the intent that this Guarantee shall be valid, binding and
enforceable in accordance with its terms.
10.2 No failure or delay by the Bank in exercising any right, power or privilege
hereunder and no course of dealing between any person and the Bank shall
operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. Subject always to the maximum amount
recoverable by the Bank pursuant to or in relation to the Loan Agreement
being the amount of the Outstanding Indebtedness, the rights and remedies
herein are cumulative and not exclusive of any rights or remedies which the
Bank would otherwise have.
55
11. ASSIGNMENT
The Bank may assign or transfer its rights hereunder to any person to whom
the rights and obligations of the Bank under the Loan Agreement are wholly
or partially assigned or transferred.
12. NOTICES
12.1 Except as otherwise provided herein each notice, request, demand or other
communication or document to be given or made under this Guarantee shall be
given in writing but unless otherwise stated, may be made by telefax.
12.2 Any notice, demand or other communication to be made or delivered by any
party pursuant to this Guarantee shall (unless the addressee has by fifteen
(15) days' written notice to that party specified another address) be made
or delivered:-
(a) If to the Bank:
FINANSBANKEN ASA
Attn: Shipping Department
Stortingsgt. 8
P.O. Box 817
N-0104 Oslo, Norway
Telefax: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇
(b) If to the Guarantors:
▇▇▇▇ HAULING AND ▇▇▇▇ CARGO SYSTEM, INC.
WAREHOUSING SYSTEM, INC.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P. Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ and Essex Streets King and Essex Streets
Gloucester City, NJ 08030/USA Gloucester City, NJ 08030/USA
Telefax: ▇▇▇-▇▇▇-▇▇▇▇ Telefax: 609-742-3o66
56
13. GOVERNING LAW - JURISDICTION
This Guarantee shall be governed by Norwegian law and the Guarantors
irrevocably submit to the non-exclusive jurisdiction of the Norwegian
courts with Oslo City Court as due legal venue. For such purposes, both of
the Guarantors hereby appoint ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Greve, Lund, Tollbugt.
27, P.O. Box 413 Sentrum, N-0103 Oslo - Norway, Attn.: ▇▇▇ ▇▇▇▇▇▇▇▇, as
their agent for service of process.
This Guarantee has been executed by the Guarantors on the day first written
above.
▇▇▇▇ HAULING AND WAREHOUSING SYSTEM, INC. ▇▇▇▇ CARGO SYSTEM, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------- -------------------------
Title: V.P Title: V.P
-------------------- ------------------------
57
SCHEDULE 1
FORM OF DRAWDOWN NOTICE
To: FINANSBANKEN ASA
Attn: International Loan Administration
Telefax No. ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
From: THE RIVERFRONT DEVELOPMENT CORPORATION as Borrower
Date: April 16, 1997
NOK 60,000,000 Facility Agreement dated 16th April, 1997 (the "Agreement")
We refer to Clause __ of the Agreement Terms used in this Drawdown Notice have
the same meanings as in the Agreement.
1. We wish to draw a Drawing as follows
(a) Drawdown Date: April 17, 1997
(b) Amount and Currency of the Drawing: 3,757,244 NOK
(c) Interest Period: 30 days
(d) Instructions for payment of the Drawing:.........
To Fornsfinans A.S., Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telphone number 23-11-3002
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Drawdown Notice.
The Riverfront Development Corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: V.P
------------------------
58
SCHEDULE 1
FORM OF DRAWDOWN NOTICE
To: FINANSBANKEN ASA
Attn: International Loan Administration
Telefax No. ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
From: THE RIVERFRONT DEVELOPMENT CORPORATION as Borrower
Date: April 18, 1997
NOK 60,000,000 Facility Agreement dated 16th April, 1997 (the "Agreement")
We refer to Clause 5.2 of the Agrement Terms used in this Drawdown Notice have
the same meanings as in the Agreement.
1. We wish to draw a Drawing as follows
(a) Drawdown Date: April 22, 1997
(b) Amount and Currency of the Drawing: NOK EQUIV. OF U.S. $6,609,356
(c) Interest Period: 1 MONTH
(d) Instruction for payment of he Drawing: PAY TO
REDERIAKTIEBOLAGET
TRANSATLANTIC
AT SE-BANKEN, N.Y. ABA # 026 003 036
ACCOUNT SE-BANKEN GOTHEBURG IN FAVOUR OF REDERIAKTIEBOLAGET
TRANSATLANTIC
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Drawdown Notice.
The Riverfront Development Corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: V.P
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We hereby consent to the increase of the Total Commitment as stated above and
agree that the Guarantee shall secure the entire Outstanding Indebtedness of the
Borrower from time to time, including any increased Outstanding Indebtedness
incurred as a result of the present change to the Total Commitment.
▇▇▇▇ HAULING AND WAREHOUSING SYSTEM, INC. ▇▇▇▇ CARGO SYSTEM, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P. Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, V.P.
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