001-33393
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98-043-9758
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(COMMISSION FILE NUMBER)
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(I.R.S. EMPLOYER IDENTIFICATION NO.)
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o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
· | The conversion of 100% of the Claims under the Prepetition 2007 Facility into 81.1% of the New Genco Common Stock (subject to dilution by the warrants issued under the Plan). On the Effective Date, the Prepetition 2007 Facility was terminated, and the liens and mortgages thereunder were released. |
· | The conversion of 100% of the Claims under the Convertible Notes into 8.4% of the New Genco Common Stock (subject to dilution by the warrants issued under the Plan). On the Effective Date, the Convertible Notes and the related indenture were fully satisfied and discharged. |
· | A fully backstopped Rights Offering for approximately 8.7% of the New Genco Common Stock, in which holders of Prepetition 2007 Facility Claims were entitled to subscribe for up to 80% of the New Genco Common Stock offered, and holders of Convertible Note Claims were entitled to subscribe for up to 20% of the New Genco Common Stock being offered under the Rights Offering. Each Right entitled its holder to purchase one share of New Genco Common Stock at a subscription price of $18.62537, for an aggregate subscription price of $100 million. |
· | The amendment and restatement of the Prepetition $253 Million Facility and the Prepetition $100 Million Facility as of the Effective Date, with extended maturities, a financial covenant holiday and certain other amendments, as discussed more fully below. |
· | The cancellation of the old common stock of Genco as of the Effective Date, with the holders thereof receiving warrants to acquire shares of New Genco Common Stock. Each New Genco Equity Warrant is exercisable for one share of New Genco Common Stock, and holders received an aggregate of 3,938,298 New Genco Equity Warrants for the old common stock of Genco. The New Genco Equity Warrants in the aggregate are exercisable for approximately 6% of New Genco Common Stock (subject to dilution). |
· | Reinstatement, non-impairment or payment in full in the ordinary course of business during the pendency of the Chapter 11 Cases of all Allowed General Unsecured Claims, including Allowed Claims of trade vendors, suppliers, customers and charterers, per the approval by the Bankruptcy Court. |
· | The non-impairment of all other General Unsecured Claims under section 1124 of the Bankruptcy Code. |
· |
A Management Incentive Program, which provides for the distribution of New Genco MIP Primary Equity in the form of shares representing 1.8% of the New Genco Common Stock and three tiers of New Genco MIP Warrants with
staggered strike prices based on increasing equity values
to the participating officers, directors, and other management of Reorganized Genco.
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Item 1.01. | Entry into a Material Definitive Agreement. |
Item 1.02
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Termination of a Material Definitive Agreement.
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Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
Item 3.02. | Unregistered Sale of Equity Securities. |
Item 3.03. | Material Modifications to the Rights of Security Holders. |
Item 5.01. | Changes in Control of Registrant. |
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Item 9.01. | Financial Statements and Exhibits. |
(d)
Exhibits.
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The following exhibits are filed herewith:
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Exhibit No.
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Description
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2.1
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Order Confirming the First Amended Prepackaged Plan of Reorganization of Genco Shipping & Trading Limited (included as Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed on July 7, 2014 and incorporated herein by reference)
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2.2
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First Amended Prepackaged Plan of Reorganization, filed with the Bankruptcy Court on June 11, 2014 (included as Exhibit 2.2 to the Registrant’s Current Report on Form 8-K filed on July 7, 2014 and incorporated herein by reference)
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3.1
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Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited, as adopted July 9, 2014
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3.2
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Amended and Restated By-Laws of Genco Shipping & Trading Limited, dated as of July 9, 2014
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4.1
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Form of Specimen Stock Certificate of Genco Shipping & Trading Limited
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4.2
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Form of Specimen Warrant Certificate of Genco Shipping & Trading Limited
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10.1
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Second Supplemental Agreement dated as of July 19, 2014 to $253,000,000 Secured Loan Facility Agreement dated August 20, 2010, by and among Genco Shipping & Trading Limited as Borrower; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken AB (publ), as Lenders; Deutsche Bank Luxembourg S.A., as Agent; BNP Paribas, Crédit Agricole, Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken Ab (publ), as Mandated Lead Arrangers; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG, and Skandinaviska Enskilda Banken AB (publ), as Swap Providers; Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner; and the subsidiaries of Genco listed therein as Guarantors
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10.2
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Amendment and Restatement Agreement, dated as of July 9, 2014, by and among Genco Shipping & Trading Limited as Borrower, the companies listed in Schedule 2 of Appendix A thereto as Guarantors, the banks and financial institutions listed in Schedule 1 of Appendix A thereto as Lenders, and Crédit AgricoleCorporate and Investment Bank, as Agent and Security Trustee
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10.3
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Registration Rights Agreement as of July 9, 2014 by and between Genco Shipping & Trading Limited and the Holders party thereto.
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10.4
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Warrant Agreement, dated as of July 9, 2014, between Genco Shipping & Trading Limited and Computershare Inc., as Warrant Agent
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GENCO SHIPPING & TRADING LIMITED
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By:
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/s/ John C. Wobensmith
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Name:
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John C. Wobensmith
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Title:
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Chief Financial Officer and Secretary
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(Principal Financial and Accounting Officer) | |||
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Date: July 15, 2014
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Exhibit No.
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Description
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2.1
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Order Confirming the First Amended Prepackaged Plan of Reorganization of Genco Shipping & Trading Limited (included as Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed on July 7, 2014 and incorporated herein by reference)
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2.2
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First Amended Prepackaged Plan of Reorganization, filed with the Bankruptcy Court on June 11, 2014 (included as Exhibit 2.2 to the Registrant’s Current Report on Form 8-K filed on July 7, 2014 and incorporated herein by reference)
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Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited, as adopted July 9, 2014
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Amended and Restated By-Laws of Genco Shipping & Trading Limited, dated as of July 9, 2014
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Form of Specimen Stock Certificate of Genco Shipping & Trading Limited
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Form of Specimen Warrant Certificate of Genco Shipping & Trading Limited
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Second Supplemental Agreement dated as of July 19, 2014 to $253,000,000 Secured Loan Facility Agreement dated August 20, 2010, by and among Genco Shipping & Trading Limited as Borrower; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken AB (publ), as Lenders; Deutsche Bank Luxembourg S.A., as Agent; BNP Paribas, Crédit Agricole, Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken Ab (publ), as Mandated Lead Arrangers; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG, and Skandinaviska Enskilda Banken AB (publ), as Swap Providers; Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner; and the subsidiaries of Genco listed therein as Guarantors
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Amendment and Restatement Agreement, dated as of July 9, 2014, by and among Genco Shipping & Trading Limited as Borrower, the companies listed in Schedule 2 of Appendix A thereto as Guarantors, the banks and financial institutions listed in Schedule 1 of Appendix A thereto as Lenders, and Crédit AgricoleCorporate and Investment Bank, as Agent and Security Trustee
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Registration Rights Agreement as of July 9, 2014 by and between Genco Shipping & Trading Limited and the Holders party thereto.
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Warrant Agreement, dated as of July 9, 2014, between Genco Shipping & Trading Limited and Computershare Inc., as Warrant Agent
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Name
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Post Office Address
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Majuro Nominees Ltd.
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P.O. Box 1405
Majuro
Marshall Islands
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/s/ John C. Wobensmith
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John C. Wobensmith
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Secretary
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COMMON STOCK | COMMON STOCK | |
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PAR VALUE $0.01
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THIS CERTIFICATE IS TRANSFERABLE IN
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CANTON, MA, JERSEY CITY, NJ AND
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COLLEGE STATION, TX.
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Certificate Number
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SHARES
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CUSIP Y2685T115
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/s/ John C. Wobensmith
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[SEAL]
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SECRETARY
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COUNTERSIGNED AND REGISTERED:
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COMPUTERSHARE INC.
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TRANSFER AGENT AND REGISTRAR
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BY
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AUTHORIZED SIGNATURE
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TEN COM
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-
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tenants-in-common
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TEN ENT
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-
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as tenants by the entireties
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JT TEN
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-
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as joint tenants with right of survivorship and not as tenants-in-common
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UNIF GIFT MIN ACT —
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Custodian
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(Cust)
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(Minor)
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under, Uniform Gifts to Minors Act
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State
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UNIF TRAN MIN ACT —
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Custodian
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(Cust)
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(Minor)
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under, Uniform Transfers to Minors Act
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State
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Shares of the common stock represented
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by the within Certificate, and do hereby irrevocably constitute and appoint
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Attorney to transfer
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the said stock on the books of the within-named Corporation with full power of substitution in the premises.
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Dated
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Signature(s) Guaranteed: Medallion Guarantee Stamp
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WARRANT | WARRANT | |
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PAR VALUE $0.01
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THIS CERTIFICATE IS TRANSFERABLE IN
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CANTON, MA, JERSEY CITY, NJ AND
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COLLEGE STATION, TX.
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Certificate
Number
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WARRANTS
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CUSIP Y2685T123
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/s/ Robert Gerald Buchanan
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[SEAL]
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AUTHORIZED OFFICER
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/s/ John C. Wobensmith
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Secretary
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COUNTERSIGNED AND REGISTERED:
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COMPUTERSHARE INC.
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WARRANT AGENT
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BY
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AUTHORIZED SIGNATURE
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TEN COM
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-
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tenants-in-common
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TEN ENT
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-
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as tenants by the entireties
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JT TEN
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-
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as joint tenants with right of survivorship and not as tenants-in-common
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UNIF GIFT MIN ACT —
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Custodian
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(Cust)
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(Minor)
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under, Uniform Gifts to Minors Act
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State
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UNIF TRAN MIN ACT —
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(Cust)
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(Minor)
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under, Uniform Transfers to Minors Act
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State
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Dated: , 20
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Signature:
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Name:
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Dated: , 20
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Signature:
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Name:
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Signature(s) Guaranteed: Medallion Guarantee Stamp
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Page
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1
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Interpretation
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3
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2
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Conditions
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5
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3
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Representations and Warranties
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8
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4
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Amendments to Original Loan Agreement
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8
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5
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Confirmation and Undertaking
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9
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6
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Notices, Counterparts, Law and Jurisdiction
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9
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Schedule 1
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The Lenders
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10
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Schedule 2
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Effective Date Confirmation
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11
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Schedule 3
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Loan Agreement
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13
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(1) | Genco Shipping & Trading Limited , a corporation incorporated under the laws of the Marshall Islands whose principal place of business is at 299 Park Avenue, 20 th Floor, New York, New York 10171, USA (the " Borrower "); |
(2) | the banks listed in Schedule 1 ( The Lenders ), each acting through its office at the address indicated against its name in Schedule 1 (together the " Lenders " and each a " Lender "); |
(3) | Deutsche Bank Luxembourg S.A. , acting as agent through its office at 2, Bvd Konrad Adenauer, L-1115 Luxembourg (in that capacity the " Agent "); |
(4) | Deutsche Bank AG Filiale Deutschlandgeschäft, Frankfurt am Main, Germany acting as mandated lead arranger through its office at Adolphsplatz 7, 20457 Hamburg, Germany (formerly Ludwig-Erhard-Strasse 1, 20459 Hamburg, Germany), BNP Paribas acting as mandated lead arranger through its office at 16 rue du Hanovre, 75002 Paris, France, Credit Agricole Corporate and Investment Bank acting as mandated lead arranger through its office at 9, quai du President Paul Doumer, 92920 Paris la Defense, France, DVB Bank SE , acting as mandated lead arranger through its office at Platz der Republik 6, D-60325 Frankfurt am Main, Germany, and Skandinaviska Enskilda Banken AB (publ) acting as mandated lead arranger through its office at Kungsträdgårdsgatan 8, 106 40 Stockholm, Sweden (in that capacity the " Mandated Lead Arrangers "); |
(5) | Deutsche Bank AG acting as swap provider through its office at Taunusanlage 12, 60325 Frankfurt am Main, Germany (formerly Theodor-Heuss-Allee 70, 60486 Frankfurt am Main, Germany), BNP Paribas acting as swap provider through its office at 16 Bd des Italiens, 75009 Paris, France, Credit Agricole Corporate and Investment Bank acting as swap provider through its office at 9, quai du President Paul Doumer, 92920 Paris la Defense, France, DVB Bank SE , acting as swap provider through its office at Platz der Republik 6, D-60325 Frankfurt am Main, Germany, and Skandinaviska Enskilda Banken AB (publ) acting as swap provider through its office at Kungsträdgårdsgatan 8, 106 40 Stockholm, Sweden (in that capacity, the " Swap Providers " and each a " Swap Provider "); |
(6) | Deutsche Bank AG Filiale Deutschlandgeschäft , Frankfurt am Main, Germany, acting as security agent and bookrunner through its office at Adolphsplatz 7, 20457 Hamburg, Germany (formerly Ludwig-Erhard-Strasse 1, 20459 Hamburg, Germany) (in these capacities the " Security Agent " and the " Bookrunner "); and |
(7) | Genco Aquitaine Limited, Genco Ardennes Limited, Genco Auvergne Limited, Genco Bourgogne Limited, Genco Brittany Limited, Genco Languedoc Limited, Genco Loire Limited, Genco Lorraine Limited, Genco Normandy Limited, Genco Picardy Limited, Genco Provence Limited, Genco Pyrenees Limited And Genco Rhone Limited , each a company incorporated according to the law of the Marshall Islands whose registered address is at Trust Company Complex, |
(A) | On 21 April 2014, the Borrower and fifty seven (57) of its subsidiaries (including the Collateral Owners) (together, the " Debtors ") commenced bankruptcy proceedings with case no. 14-11108-shl (the " Cases ") pursuant to chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (as amended, the " Bankruptcy Code ") in the United States Bankruptcy Court for the Southern District of New York (the " Bankruptcy Court "). |
(B) | As part of the Plan of Reorganisation, the Borrower has requested that certain amendments be made to the Original Loan Agreement as set out in a restructuring term sheet exhibited to a restructuring support agreement dated 3 April 2014 made between the Borrower, certain of its subsidiaries and creditors of the Borrower (the " Restructuring Support Agreement ") to enable the reorganized Debtors to, among other things, consummate the transactions contemplated by the Plan of Reorganisation and to pay related fees and expenses. |
(C) | The Finance Parties have agreed to the requests referred to in Recital (B) subject to the terms and conditions of this Supplemental Agreement and of the Restructuring Support Agreement. |
1 | Interpretation |
1.1 | In this Supplemental Agreement: |
1.2 | All words and expressions defined in the Original Loan Agreement shall have the same meaning when used in this Supplemental Agreement unless the context otherwise requires, and clause 1.2 ( Definitions and Interpretation ) of the Original Loan Agreement shall apply to the interpretation of this Supplemental Agreement as if it were set out in full. |
1.3 | This Supplemental Agreement shall be a Finance Document. |
2 | Conditions |
2.1 | As conditions precedent for the agreement of the Finance Parties to the requests specified in Recital (B) above and for the effectiveness of Clause 4 ( Amendments to Original Loan Agreement ), the Borrower shall deliver or cause to be delivered to or to the order of the Agent the following documents and evidence: |
2.1.1 | in respect of each Collateral Owner: |
(a) | a certificate of good standing; |
(b) | a certificate of a duly authorised officer of each Collateral Owner dated the day of this Supplemental Agreement (i) certifying that the Collateral Owner is existing in good standing in the jurisdiction of its incorporation, (ii) confirming that none of the documents delivered to the Agent pursuant to clauses 2.1.1 to 2.1.3 of the second supplemental to the Loan Agreement dated 1 August 2012 have been amended or modified in any way (or copies, certified by a duly authorised officer of the Collateral Owner in question as true, complete, accurate and neither amended nor revoked, of any such documents which have been amended or modified), (iii) setting out the names and titles of the directors and officers of that Collateral Owner, and (iv) attaching an incumbency certificate reflecting the name and signature of each officer authorized to execute the New Documents to which that Collateral Owner is a party and that no proceedings are pending or contemplated for the dissolution of that Collateral Owner; |
(c) | a copy, certified by a director or the secretary of each Collateral Owner as true, complete and accurate and neither amended nor revoked and in full force and effect, of a resolution of the directors of that Collateral Owner (together, where appropriate, with signed waivers of notice of any directors' meetings) approving, and authorising or ratifying the execution of, the New Documents to which it is a party and any document to be executed by that Collateral Owner pursuant to such New Documents; |
(d) | a copy of a resolution signed by all the holders of the issued shares in each Collateral Owner, approving the terms of, and the transactions contemplated by, the New Documents to which that Collateral Owner is a party; |
2.1.2 | in respect of the Borrower: |
(a) | a certificate of a duly authorised officer of the Borrower dated the day of this Supplemental Agreement (i) certifying that the Borrower is existing in good standing in the jurisdiction of its incorporation, (ii) confirming that none of the documents delivered to the Agent pursuant to clauses 2.1.1 to 2.1.3 of the second supplemental to the Loan Agreement dated 1 August 2012 have been amended or modified in any way (or copies, certified by a duly authorised officer of the Borrower in question as true, complete, accurate and |
(b) | a copy, certified by a director or the secretary of the Borrower as true, complete and accurate and neither amended nor revoked and in full force and effect, of a resolution of the directors of the Borrower (together, where appropriate, with signed waivers of notice of any directors' meetings) approving, and authorising or ratifying the execution of, the New Documents to which it is a party and any document to be executed the Borrower pursuant to such New Documents; |
(c) | a certificate of good standing; |
2.1.3 | duly executed New Documents; |
2.1.4 | evidence that (i) the Mortgage Amendments will be capable of being registered against the Vessels and (ii) the discharge of the Second Mortgages will be capable of being recorded against the Vessels; |
2.1.5 | evidence that the second assignment of Insurances of each Vessel executed in favour of the DNB Collateral Agent to secure further the obligations of the Borrower under the DNB Credit Agreement will be released and reassigned; |
2.1.6 | if a Security Party is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Lenders in each relevant jurisdiction, substantially in the form or forms provided to the Agent prior to signing this Agreement or confirmation satisfactory to the Agent that such an opinion will be given; |
2.1.7 | a copy of the supplemental agreement to the Metrostar Facility together with evidence that the amendments to the Metrostar Facility contemplated in the Restructuring Support Agreement shall become effective on or prior to the Effective Date; |
2.1.8 | evidence that: |
(a) | the Bankruptcy Court has entered the Confirmation Order, which shall, among other things, authorise the transactions contemplated under this Supplemental Agreement; |
(b) | the Confirmation Order has not been stayed, modified or vacated on appeal; and |
(c) |
the Confirmation Order is final order in full force and effect;
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2.1.9 | evidence that the effective date of the Plan of Reorganisation will occur on or before the later of, and in each case no later than 1 August 2014: |
(a) | ten (10) calendar days following the entry of the Confirmation Order; or |
(b) | completion of the Rights Offering (as defined in the Plan of Reorganisation); |
2.1.10 | evidence that the Collateral Owners have deposited into the Master Account the relevant amounts in order to comply with the provisions of clauses 10.4 ( Deposit ) and 12.2.1 ( Minimum Liquidity ) of the Loan Agreement; and |
2.1.11 | a copy of the fund flow statement signed by the Borrower and evidencing the intended payment of fees, Repayment Instalments, interest and legal fees in accordance with Clauses 2.2.1 and 2.2.2 of this Supplemental Agreement. |
2.2 | As conditions subsequent for the agreement of the Finance Parties to the requests specified in Recital (B) above, the Borrower shall deliver or cause to be delivered to or to the order of the Agent at the times indicated below: |
2.2.1 | on the Effective Date, evidence that the Borrower has paid the Repayment Instalments due on 30 May 2014 together with interest thereon and interest and default interest accruing from 31 May 2014 until the Plan Effective Date (as such term is defined in the Restructuring Support Agreement); |
2.2.2 | on the Effective Date: |
(a) | payment to the Agent (for the account of the Lenders) of an upfront fee computed at the rate of 100bps of the amount of the Loan outstanding on the Plan Effective Date (as such term is defined in the Restructuring Support Agreement); and |
(b) | payment to each of the Agent (for its own account) and the Security Agent (for its own account) of a fee in an amount set out in the relevant Fee Letter; |
(c) | payment to the Agent of any outstanding fees payable pursuant to the working fee letter dated 25 March 2014 and made between the Agent, the Borrower and the Collateral Owners; |
(d) | payment of any invoiced legal fees due from the Borrower to the Agent in connection with the New Documents; |
2.2.3 | on the Effective Date, a certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of the Marshall Island's flag confirming that (a) the Second Mortgages have been released, (b) the Mortgage Amendments have been registered against the |
2.2.4 | on the Effective Date, evidence that the second assignment of Insurances of each Vessel executed in favour of the DnB Collateral Agent to secure further the obligations of the Borrower under the DnB Credit Agreement have been released and reassigned; |
2.2.5 | on the Effective Date, evidence that the reorganisation of the Debtor pursuant to the Plan of Reorganisation has been consummated and that the Consummation Date has occurred in each case not later than 1 August 2014; |
2.2.6 | as soon as practicable after the Effective Date, such of the legal opinions specified in Clause 2.1.6 as have not already been provided to the Agent; and |
2.2.7 | as soon as practicable after the Effective Date, any updated insurance documents issued by the insurers of the Vessels taking into account the release of the Second Mortgages. |
2.3 | All documents and evidence delivered to the Agent pursuant to Clauses 2.1 and 2.2 shall: |
2.3.1 | be in form and substance reasonably acceptable to the Agent (acting on the instructions of the Lenders); |
2.3.2 | if required by the Agent, be certified, notarised, legalised or attested in a manner acceptable to the Agent. |
3 | Representations and Warranties |
3.1 | Each of the representations and warranties contained in clause 11 ( Representations ) of the Original Loan Agreement (except in respect of clauses 11.1.9 and 11.1.12 insofar as they relate to the Cases, non-compliance with the financial covenants, the Event of Default pursuant to clause 13.1.4 of the Loan Agreement and the covenant to deliver the Compliance Certificate for the quarter ending on 31 March 2014) shall be deemed repeated by the Borrower at the date of this Supplemental Agreement and at the Effective Date, by reference to the facts and circumstances then pertaining, as if references to the Finance Documents included this Supplemental Agreement, provided that to the extent any such representation or warranty relates to an earlier date, such representation or warranty shall be true and correct in all material respects on such date. |
3.2 | The Borrower represents and warrants to each Finance Party that on the Effective Date, the final maturity date under the Metrostar Loan Agreement will be 31 August 2019 and the applicable margin in the Metrostar Loan Agreement will be 3.5% per annum. |
4 | Amendments to Original Loan Agreement |
5 | Confirmation and Undertaking |
5.1 | Each of the Security Parties confirms that all of its respective obligations under or pursuant to each of the Security Documents to which it is a party remain in full force and effect, despite the amendments to the Original Loan Agreement made in this Supplemental Agreement, as if all references in any of the Security Documents to the Original Loan Agreement were references to the Original Loan Agreement as amended and supplemented by this Supplemental Agreement. |
5.2 | The definition of any term defined in any of the Security Documents shall, to the extent necessary, be modified to reflect the amendments to the Original Loan Agreement made in or pursuant to this Supplemental Agreement. |
6 | Notices, Counterparts, Law and Jurisdiction |
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Page
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1
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Definitions and Interpretation
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4
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2
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The Loan and its Purpose
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25
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3
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Conditions of Utilisation
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25
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4
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Advance
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26
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5
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Repayment
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26
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6
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Prepayment
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28
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7
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Interest
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31
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8
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Indemnities
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33
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9
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Fees
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36
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10
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Security and Application of Moneys
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37
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11
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Representations
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40
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12
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Undertakings and Covenants
|
42
|
13
|
Events of Default
|
63
|
14
|
Assignment and Sub-Participation
|
66
|
15
|
The Agent, the Security Agent and the Lenders
|
68
|
16
|
Set-Off
|
75
|
17
|
Payments
|
75
|
18
|
Notices
|
76
|
19
|
Partial Invalidity
|
78
|
20
|
Remedies and Waivers
|
78
|
21
|
Miscellaneous
|
78
|
22
|
Law and Jurisdiction
|
79
|
Schedule 1
|
: The Lenders and the Commitments
|
81
|
|
The Lenders The Commitments
|
81
|
Schedule 2
|
: Conditions Precedent and Subsequent
|
83
|
|
Part I: Conditions precedent to a Drawdown Notice
|
83
|
Schedule 3
|
: Calculation of Mandatory Cost
|
89
|
Schedule 4
|
: Form of Drawdown Notice
|
91
|
Schedule 5
|
: Form of Transfer Certificate
|
92
|
Schedule 6
|
: Form of Compliance Certificate
|
95
|
(1) | Genco Shipping & Trading Limited , a corporation incorporated under the laws of the Marshall Islands whose principal place of business is at 299 Park Avenue, 12 th Floor, New York, New York 10171 (the " Borrower "); and |
(2) | the banks listed in Schedule 1 ( The Lenders and the Commitments ), each acting through its office at the address indicated against its name in Schedule 1 ( The Lenders and the Commitments ) (together, the " Lenders " and each a " Lender "); |
(3) | Deutsche Bank Luxembourg S.A. , acting as agent through its office at 2, Bvd Konrad Adenauer, L-1115 Luxembourg (in that capacity the " Agent "); |
(4) | Deutsche Bank AG Filiale Deutschlandgeschäft , Frankfurt am Main, Germany acting as mandated lead arranger through its office at Adolphsplatz 7, 20457 Hamburg, Germany, BNP Paribas acting as mandated lead arranger through its office at 16 rue du Hanovre, 75002 Paris, France, Credit Agricole Corporate and Investment Bank acting as mandated lead arranger through its office at 9, quai du President Paul Doumer, 92920 Paris la Defense, France, DVB Bank SE , acting as mandated lead arranger through its office at Platz der Republik 6, D-60325 Frankfurt am Main, Germany, and Skandinaviska Enskilda Banken AB (publ) acting as mandated lead arranger through its office at Kungsträdgårdsgatan 8, 106 40 Stockholm, Sweden (in that capacity the " Mandated Lead Arrangers "); |
(5) | Deutsche Bank AG acting as swap provider through its office at Theodor-Heuss-Alle 70, 60486 Frankfurt am Main, Germany, BNP Paribas acting as swap provider through its office at 10 Harewood Road, London NW1 6AA, England, Credit Agricole Corporate and Investment Bank acting as swap provider through its office at 9, quai du President Paul Doumer, 92920 Paris la Defense, France, DVB BANK SE , acting as swap provider through its office at Platz der Republik 6, D-60325 Frankfurt am Main, Germany, and Skandinaviska Enskilda Banken AB (publ) acting as swap provider through its office at Kungsträdgårdsgatan 8, 106 40 Stockholm , Sweden (in that capacity, the " Swap Providers " and each a " Swap Provider "); and |
(6) | Deutsche Bank AG Filiale Deutschlandgeschäft , Frankfurt am Main, Germany, acting as security agent and bookrunner through its office at Adolphsplatz 7, 20457 Hamburg, Germany (in these capacities the " Security Agent " and the " Bookrunner "). |
(A) | Each Collateral Owner is a Wholly-Owned Subsidiary of the Borrower and has purchased or agreed to purchase the relevant Vessel from the relevant Seller on the terms of the relevant MOA and has registered or intends to register that Vessel under the relevant flag specified below in the definition of "Vessels". |
(B) | Each of the Lenders has agreed to provide post-delivery finance and to advance to the Borrower its Commitment (aggregating, with all the other Commitments, up to $253,000,000) on the terms and conditions set out in this Agreement which the Borrower will use to subscribe for shares in each Collateral Owner thereby providing funding to the Collateral Owners to assist the Collateral Owners to finance or refinance (as the case may be) part of the aggregate Purchase Price of the Vessels. |
1 | Definitions and Interpretation |
1.1 | In this Agreement: |
(i) | Financial Indebtedness outstanding pursuant to trade payables and accrued expenses incurred in the ordinary course of business; |
(ii) | guarantees of operating leases assigned to any of the Borrower or any Wholly-Owned Subsidiary of the Borrower to the extent such lease is not prohibited hereunder and such obligation does not exceed that which would otherwise be attributed to such Person under such operating lease; and |
(iii) | any letters of credit, guarantees or any similar debt instruments which collateralise the Borrower's obligations for the release from arrest of Vessel H and for letters of credit in respect of rent obligations under real property leases, |
(a) | the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period; and |
(b) | the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period, |
(a) | the applicable Screen Rate; or |
(b) | (if no Screen Rate is available for the Interest Period) the Interpolated Screen Rate; |
(c) | (if no Screen Rate is available for any Interest Period) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks (or by two of them if one is unable to quote) to leading banks in the London interbank market, |
Vessel
|
Amount
|
Vessel A
|
$20,000,000
|
Vessel B
|
$21,500,000
|
Vessel C
|
$20,000,000
|
Vessel D
|
$21,500,000
|
Vessel E
|
$15,000,000
|
Vessel F
|
$20,000,000
|
Vessel G
|
$16,500,000
|
Vessel H
|
$20,000,000
|
Vessel I
|
$14,000,000
|
Vessel J
|
$20,000,000
|
Vessel K
|
$21,500,000
|
Vessel L
|
$21,500,000
|
Vessel M
|
$21,500,000
|
(a) | Encumbrances created by the Security Documents; |
(b) | liens for unpaid master's and crew's wages incurred in accordance with usual maritime practice; |
(c) | liens for salvage; |
(d) | liens arising by operation of law for not more than two (2) months' prepaid hire under any charter in relation to a Vessel not prohibited by this Agreement; |
(e) | liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Vessel, provided such liens do not secure amounts more than thirty (30) days overdue (unless the overdue amount is being contested by the Borrower or relevant Collateral Owner in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 12.5.25; |
(f) | any Encumbrance created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Borrower or relevant Collateral Owner is actively prosecuting or defending such proceedings or arbitration in good faith; and |
(g) | Encumbrances arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made, |
(i) | is a supramax bulker (a) of at least the same value as the Vessel to be replaced, (b) of the same age or younger than the Vessel to be replaced and (c) with specifications substantially identical to the Vessel to be replaced, acceptable to the Lenders; |
(ii) | is registered or to be registered on a flag acceptable to the Lenders; and |
(iii) | has a class acceptable to the Lenders with a classification society acceptable to the Lenders. |
(a) | an actual, constructive, arranged, agreed or compromised total loss of a Vessel; or |
(b) | the requisition for title or compulsory acquisition of a Vessel by any government or other competent authority (other than by way of requisition for hire); or |
(c) | the capture, seizure, arrest, detention (including hijacking or theft) or confiscation of a Vessel by any government or by persons acting or purporting to act on behalf of any government, unless that Vessel is released and returned to the possession of the relevant Collateral Owner within one month after the capture, seizure, arrest, detention (including hijacking or theft) or confiscation in question. |
(a) | the proposed Transfer Date specified in the Transfer Certificate; and |
(b) | the date on which the Agent executes the Transfer Certificate. |
(a) | all benefits derived by the Security Agent from Clause 10 (Security and Application of Moneys); and |
(b) | all benefits arising under (including, without limitation, all proceeds of the enforcement of) each of the Security Documents, |
Vessel
|
Name of
Vessel
|
Flag
|
Seller
|
Collateral
Owner
|
Purchase
Price
|
Vessel A
|
"NANTOR" (t.b.r. "GENCO LORRAINE")
|
Malta
|
H.S.O. Sasu
|
Genco Lorraine Limited
|
$32,400,000
|
Vessel B
|
"PEARLOR" (t.b.r. "GENCO PYRENEES")
|
Malta
|
Pearlor Sasu
|
Genco Pyrenees Limited
|
$35,700,000
|
Vessel C
|
"FRUCTIDOR" (t.b.r. "GENCO LOIRE")
|
Malta
|
Fructidor Sasu
|
Genco Loire Limited
|
$32,400,000
|
Vessel D
|
"SEFOR" (t.b.r. "GENCO BOURGOGNE")
|
Malta
|
Sefor Sasu
|
Genco Bourgogne Limited
|
$35,700,000
|
Vessel E
|
"DALIOR" (t.b.r. "GENCO PICARDY")
|
Luxembourg
|
Sinvrac Sasu
|
Genco Picardy Limited
|
$29,600,000
|
Vessel F
|
"MAJOR" (t.b.r. "GENCO AQUITAINE")
|
Malta
|
F.B.O. Sasu
|
Genco Aquitaine Limited
|
$35,700,000
|
Vessel G
|
"THERMIDOR" (t.b.r. "GENCO NORMANDY")
|
Luxembourg
|
Thermidor Sasu
|
Genco Normandy Limited
|
$30,000,000
|
Vessel H
|
"MOLITOR" (t.b.r. "GENCO AUVERGNE")
|
Malta
|
Molitor Sasu
|
Genco Auvergne Limited
|
$35,700,000
|
Vessel I
|
"MESSIDOR" (t.b.r. "GENCO PROVENCE")
|
Luxembourg
|
Avracs Sasu
|
Genco Provence Limited
|
$29,500,000
|
Vessel J
|
"TABOR" (t.b.r. "GENCO ARDENNES")
|
Malta
|
F.B.O. Sasu
|
Genco Ardennes Limited
|
$35,700,000
|
Vessel K
|
"MATADOR" (t.b.r. "GENCO BRITTANY")
|
Malta
|
Matador Sasu
|
Genco Brittany Limited
|
$35,700,000
|
Vessel L
|
"TENOR" (t.b.r. "GENCO LANGUEDOC")
|
Malta
|
Tenor Sasu
|
Genco Languedoc Limited
|
$35,700,000
|
Vessel M
|
"SUNOR" (t.b.r. "GENCO RHONE")
|
Not applicable
|
Setaf SAS
|
Genco Rhone Limited
|
$35,700,000
|
1.2 | In this Agreement: |
1.2.1 | words denoting the plural number include the singular and vice versa; |
1.2.2 | words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or authorities and vice versa; |
1.2.3 | references to Recitals, Clauses and Schedules are references to recitals, clauses and schedules to or of this Agreement; |
1.2.4 | references to this Agreement include the Recitals and the Schedules; |
1.2.5 | the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Agreement; |
1.2.6 | references to any document (including, without limitation, to all or any of the Relevant Documents) are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; |
1.2.7 | references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re-enacted; |
1.2.8 | references to any Finance Party include its successors, transferees and assignees; |
1.2.9 | a time of day (unless otherwise specified) is a reference to London time; and |
1.2.10 | words and expressions defined in the Master Agreement, unless the context otherwise requires, have the same meaning. |
1.3 | Offer letter |
2 | The Loan and its Purpose |
2.1 | Amount Subject to the terms of this Agreement, the Lenders agree to make available to the Borrower a term loan not exceeding the Maximum Loan Amount. |
2.2 | Finance Parties' obligations The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other party to the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
2.3 | Purpose The Borrower shall apply the Loan for the purposes referred to in Recital (B). |
2.4 | Monitoring No Finance Party is bound to monitor or verify the application of any amount borrowed under this Agreement. |
3 | Conditions of Utilisation |
3.1 | Conditions precedent The Borrower is not entitled to have any Drawing advanced unless the Agent has received (i) all of the documents and other evidence listed in Part I of Schedule 2 (: Conditions Precedent and Subsequent) on or before the date of the relevant Drawdown Notice and (ii) all of the documents and other evidence listed in Part II of Schedule 2 (: Conditions Precedent and Subsequent) on or before the relevant Drawdown Date, save in each case that references in Section 2 of that Part I and that Part II to "the Vessel" or to any person or document relating to a Vessel shall be deemed to relate solely to any Vessel specified in the relevant Drawdown Notice or to any person or document relating to that Vessel respectively. |
3.2 | Further conditions precedent The Lenders will only be obliged to advance a Drawing if on the date of the Drawdown Notice and on the proposed Drawdown Date: |
3.2.1 | no Default is continuing or would result from the advance of that Drawing; and |
3.2.2 | the representations made by the Borrower under Clause 11 (Representations) are true in all material respects. |
3.3 | Drawing limit The Lenders will only be obliged to advance a Drawing if: |
3.3.1 | that Drawing will not exceed the Maximum Sum of the relevant Vessel; |
3.3.2 | that Drawing will not increase the Loan to a sum in excess of the Maximum Loan Amount; |
3.3.3 | that Drawing will be applied in or towards payment of the purchase price under the relevant MOA to be financed or refinanced (as applicable) by the Lenders under the terms of this Agreement for that Vessel. |
3.4 | Adjustment of Maximum Sum In the event of any reduction in the Purchase Price of a Vessel, the Agent shall by notice to the Lenders and the Borrower prior to the relevant Drawdown Date adjust the Maximum Sum in relation to that Vessel such that the Maximum Loan Amount shall be fifty seven point five per cent (57.5%) of |
3.5 | Conditions subsequent The Borrower undertakes to deliver or to cause to be delivered to the Agent on, or within forty five (45) day of (or such other period specifically stated in Part III of Schedule 2 : Conditions Precedent and Subsequent), the relevant Drawdown Date the additional documents and other evidence listed in Part III of Schedule 2 (: Conditions Precedent and Subsequent), save that references in that Part III to "the Vessel" or to any person or document relating to a Vessel shall be deemed to relate solely to any Vessel specified in the relevant Drawdown Notice or to any person or document relating to that Vessel respectively. |
3.6 | No waiver If the Lenders in their sole discretion agree to advance a Drawing to the Borrower before all of the documents and evidence required by Clause 3.1 ( Conditions precedent ) have been delivered to or to the order of the Agent, the Borrower undertakes to deliver all outstanding documents and evidence to or to the order of the Agent no later than thirty (30) days after the relevant Drawdown Date or such other date specified by the Agent. |
3.7 | Form and content All documents and evidence delivered to the Agent under this Clause 3 shall: |
3.7.1 | be in form and substance acceptable to the Agent; and |
3.7.2 | if required by the Agent, be certified, notarised, legalised or attested in a manner acceptable to the Agent. |
3.8 | Number of Drawings No more than thirteen (13) Drawings (one per Tranche) shall be advanced by the Finance Parties under this Agreement. |
4 | Advance |
4.1 | Drawdown Request The Borrower may request a Drawing to be advanced in one amount on any Business Day prior to the Availability Termination Date by delivering to the Agent a duly completed Drawdown Notice not more than ten (10) and not fewer than three (3) Business Days before the proposed Drawdown Date. |
4.2 | Lenders' participation Subject to Clauses 2 ( The Loan and its Purpose ) and 3 ( Conditions of Utilisation ), the Agent shall promptly notify each Lender of the receipt of a Drawdown Notice, following which each Lender shall advance its Proportionate Share of the relevant Drawing to the Borrower through the Agent on the relevant Drawdown Date. |
5 | Repayment |
5.1 | Repayment of Tranches The Borrower agrees to repay: |
5.1.1 | Tranche A to the Agent for the account of the Lenders by consecutive quarterly instalments, each in the sum of three hundred eighty five |
5.1.2 | Tranche B to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty four thousand Dollars ($384,000) and a final instalment of the outstanding amount of Tranche B; |
5.1.3 | Tranche C to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty five thousand Dollars ($385,000) and a final instalment of the outstanding amount of Tranche C; |
5.1.4 | Tranche D to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty four thousand Dollars ($384,000) and a final instalment of the outstanding amount of Tranche D; |
5.1.5 | Tranche E to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of four hundred seventeen thousand Dollars ($417,000) and a final instalment of the outstanding amount of Tranche E; |
5.1.6 | Tranche F to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty five thousand Dollars ($385,000) and a final instalment of the outstanding amount of Tranche F; |
5.1.7 | Tranche G to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred seventy five thousand Dollars ($375,000) and a final instalment of the outstanding amount of Tranche G; |
5.1.8 | Tranche H to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty five thousand Dollars ($385,000) and a final instalment of the outstanding amount of Tranche H; |
5.1.9 | Tranche I to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of four hundred thirty eight thousand Dollars ($438,000) and a final instalment of the outstanding amount of Tranche I; |
5.1.10
|
Tranche J to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty five thousand Dollars ($385,000) and a final instalment of the outstanding amount of Tranche J; |
5.1.11 | Tranche K to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty four thousand Dollars ($384,000) and a final instalment of the outstanding amount of Tranche K; |
5.1.12 | Tranche L to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty four thousand Dollars ($384,000) and a final instalment of the outstanding amount of Tranche L; and |
5.1.13 | Tranche M to the Agent for the account of the Lenders by consecutive quarterly instalments each in the sum of three hundred eighty four thousand Dollars ($384,000) and a final instalment of the outstanding amount of Tranche M, |
(a) | prior to the Effective Date, with the first instalment falling due, in respect of a Tranche drawn down prior to 30 November 2010, on 30 November 2010 and, in respect of a Tranche drawn down on or after 30 November 2010, the earlier of the date which is three calendar months after the Drawdown Date and the last day of November, February, May or August (as the case may be) that follows the relevant Drawdown Date; and |
(b) | after the Effective Date, with subsequent instalments falling due on a consolidated basis at consecutive intervals of three calendar months after the Effective Date and with the final instalment falling due on the Final Maturity Date. |
5.2 | Reduction of Repayment Instalments If the aggregate amount advanced to the Borrower in relation to a Tranche is less than the relevant Maximum Sum, the amount of each Repayment Instalment in respect of that Tranche shall be reduced pro rata to the amount actually advanced. |
5.3 | Reborrowing The Borrower may not reborrow any part of the Loan which is repaid or prepaid. |
5.4 | Consolidation of Tranches Notwithstanding that the Loan will be made available to the Borrower in up to thirteen (13) Tranches, the Agent may, at its option after 30 June 2011, after the aligning of the Repayment Dates and the Interest Payment Dates in respect of the Tranches pursuant to, respectively, Clause 5.1 ( Repayment of Tranches ) and Clauses 7.3 ( End of Interest Periods ) and 7.4 ( Interest Periods to meet Repayment Dates ), present to the Borrower from time to time documentation in relation to the administration of the Loan as if the Loan had been made available in five (5) amounts or fewer. |
6 | Prepayment |
6.1 | Illegality If it becomes unlawful in any jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain the Loan: |
6.1.1 | that Lender shall promptly notify the Agent of that event; |
6.1.2 | upon the Agent notifying the Borrower, the Commitment of that Lender (to the extent not already advanced) will be immediately cancelled; and |
6.1.3 | the Borrower shall repay that Lender's Commitment (to the extent already advanced) on the last day of the current Interest Period or, if earlier, the |
6.2 | Voluntary prepayment of the Loan The Borrower may prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the Loan by a minimum amount of one million Dollars ($1,000,000) or whole integral multiples thereof) subject as follows: |
6.2.1 | it gives the Agent not less than ten (10) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice; |
6.2.2 | any prepayment shall be made on the last day of an Interest Period unless otherwise agreed by the Majority Lenders and then always subject to payment by the Borrower of any Break Costs; |
6.2.3 | no prepayment may be made until after the Availability Termination Date; and |
6.2.4 | any prepayment under this Clause 6.2 shall satisfy the obligations in respect of the Loan under Clause 5.1 (Repayment of Tranches) and be applied in prepayment of the Repayment Instalments in inverse order of maturity and, if more than one Repayment Instalment is payable at the same maturity date, applied to such Repayment Instalments pro rata |
6.3 | Mandatory prepayment on sale or Total Loss If a Vessel is sold by a Collateral Owner or becomes a Total Loss, the Borrower shall, simultaneously with any such sale or, subject to Clause 6.4 (Replacement of Vessels ) within one hundred and twenty (120) days after any such Total Loss, make a prepayment of the Loan in an amount equivalent to the greater of: |
6.3.1 | the relevant Tranche then outstanding; |
6.3.2 | an amount required to ensure that following such prepayment the Borrower complies with the provisions of Clause 10.10 ( Additional security ); and |
6.3.3 | an amount required to ensure that, following such prepayment, the loan to value ratio determined in accordance with Clause 10.10 ( Additional security ) is restored to the loan to value ratio determined in accordance with Clause 10.10 ( Additional security ) immediately prior to any such sale or Total Loss. |
6.4 | Replacement of Vessels In the event that a Vessel then subject to a Mortgage becomes a Total Loss, the Borrower may, within thirty (30) days of that Vessel becoming a Total Loss, replace that Vessel with a Replacement Vessel provided that: |
6.4.1 | the Lenders' consent to such replacement has been obtained by the Agent no less than ten (10) Business Days before the proposed date of such replacement'; |
6.4.2 | no Default has occurred and is continuing; |
6.4.3 | the relevant conditions precedent and conditions subsequent set out in Schedule 2 (: Conditions Precedent and Subsequent) in respect of the Replacement Vessel and its owner shall have been met; |
6.4.4 | the Replacement Vessel meets the requirements specified in the definition thereof; |
6.4.5 | good and valuable consideration in an amount not less than the amount of the Loan which would otherwise be prepayable pursuant to Clause 6.3 (Mandatory prepayment on sale or Total Loss) shall have been paid by the Borrower or the Collateral Owner which owned the Vessel which suffered the Total Loss to the Collateral Owner owning the Replacement Vessel; |
6.4.6 | any insurance proceeds received in respect of such Total Loss shall be held in escrow by the Agent for a period of ninety (90) days following the replacement of the Vessel becoming a Total Loss by the Replacement Vessel and following expiry of such ninety (90) days shall be released to the Borrower in accordance with its instructions; |
6.4.7 | any other conditions imposed by the Lenders have been satisfied. |
6.5 | Mandatory Prepayment on Change of Control In the event of a Change of Control of the Borrower at any time following the Effective Date, the Borrower shall prepay the whole of the Loan within five (5) Business Days after the date on which the Change of Control occurs together with any Break Costs. |
6.6 | Prepayment in case of Increased Costs, Tax Gross Up and Tax Indemnity Without prejudice to the Borrower's rights contained in Clause 6.2 ( Voluntary prepayment of the Loan ), the Borrower may cancel and prepay the Loan at any time during the Facility Period in case Clauses 8.5 ( Increased costs ), 8.10 (Taxes ) and/or 17.3 (Grossing-up ) of this Agreement apply. |
6.7 | Restrictions Any notice of prepayment given under this Clause 6 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant prepayment is to be made and the amount of that prepayment. |
7 | Interest |
7.1 | Interest Periods Subject to Clause 7.3 ( End of Interest Periods ), Clause 7.4 ( Interest Periods to meet Repayment Dates ) and Clause 7.7 (Failure to select Interest Period ), the period during which the Loan shall be outstanding under this Agreement shall be divided into consecutive Interest Periods of three or six months' duration, as selected by the Borrower by written notice to the Agent not later than 11.00 a.m. on the third Business Day before the beginning of the Interest Period in question, or such other duration as may be agreed by the Agent (acting on the instructions of all the Lenders in their sole discretion). |
7.2 | Beginning of Interest Periods Each Interest Period in respect of a Drawing shall start on the relevant Drawdown Date (or, if a Drawing is already advanced, on the last day of the preceding Interest Period). |
7.3 | End of Interest Periods |
7.3.1 | Each Interest Period in respect of a Drawing drawn down prior to 30 November 2010 shall end on, in case of the first Interest Period relating to that Drawing, 30 November 2010 and, thereafter, on the date which numerically corresponds to 30 November 2010 or the last day of the preceding Interest Period in the relevant calendar month except that, if there is no numerically corresponding date in that calendar month, the Interest Period shall end on the last Business Day in that month. |
7.3.2 | Each Interest Period in respect of a Drawing drawn down on or after 30 November 2010 shall end on, in case of the first Interest Period relating to that Drawing, the final date of the then current Interest Period and, thereafter, on the date which numerically corresponds to the final date of that then current Interest Period or the last day of the preceding Interest Period in the relevant calendar month except that, if there is no numerically corresponding date in that calendar month, the Interest Period shall end on the last Business Day in that month. |
7.3.3 | Following the Effective Date, each Interest Period shall end on the date which numerically corresponds to the final date of that then current Interest Period or the last day of the preceding Interest Period in the relevant calendar month except that, if there is no numerically corresponding date in that calendar month, the Interest Period shall end on the last Business Day in that month. |
7.4 | Interest Periods to meet Repayment Dates If an Interest Period will expire after the next Repayment Date, there shall be a separate Interest Period for a part of the Loan equal to the Repayment Instalment due on that next Repayment Date and that separate Interest Period shall expire on that next Repayment Date but no later than the Final Maturity Date. |
7.5 | Non-Business Days If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). |
7.6 | Interest rate During each Interest Period interest shall accrue on the Loan at the rate determined by the Agent to be the aggregate of (a) the Margin, (b) LIBOR and (c) the Mandatory Cost, if any. |
7.7 | Failure to select Interest Period If the Borrower at any time fails to select or agree an Interest Period in accordance with Clause 7.1 (Interest Periods ), the interest rate applicable shall be the rate determined by the Agent in accordance with Clause 7.6 ( Interest rate ) for an Interest Period of such duration (not exceeding three (3) months) as the Agent may select. |
7.8 | Accrual and payment of interest Interest shall accrue from day to day, shall be calculated on the basis of a 360 day year and the actual number of days elapsed (or, in any circumstance where market practice differs, in accordance with the prevailing market practice) and shall be paid by the Borrower to the Agent for the account of the Lenders on the last day of each Interest Period and, if the Interest Period is longer than three months, on the dates falling at three monthly intervals after the first day of that Interest Period. |
7.9 | Default interest If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is two per cent (2%) higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted the Loan in the currency of the overdue amount for successive Interest Periods, each selected by the Agent (acting reasonably). Any interest accruing under this Clause 7.9 shall be immediately payable by the Borrower on demand by the Agent. If unpaid, any such interest will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. |
7.10 | Alternative interest rate If either (a) the applicable Screen Rate is not available for any Interest Period and none or only one of the Reference Banks supplies a rate to the Agent to determine LIBOR for that Interest Period or (b) a Lender or Lenders (whose Commitments exceed fifty per cent (50%) of the Loan) inform the Agent by written notice that the cost to it or them of obtaining matching deposits for any Interest Period would be in excess of LIBOR and that notice is received by the Agent no later than close of business in London on the day LIBOR is determined for that Interest Period: |
7.10.1 | the Agent shall give notice to the Lenders and the Borrower of the occurrence of such event; and |
7.10.2 | the rate of interest on each Lender's Commitment for that Interest Period shall be the rate per annum which is the sum of: |
(a) | the Margin; and |
(b) | the rate notified to the Agent by that Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its Commitment from whatever source it may reasonably select; and |
(c) | the Mandatory Cost, if any, applicable to that Lender's Commitment, |
7.10.3 | the Agent on behalf of the Lenders will negotiate with the Borrower in good faith with a view to modifying this Agreement to provide a substitute basis for determining the rate of interest; |
7.10.4 | any substitute basis agreed pursuant to Clause 7.10.3 shall, subject to the prior consent of all the Lenders, be binding on all the parties to this Agreement and shall apply to all Commitments; and |
7.10.5 | if, within thirty (30) days of the giving of the notice referred to in Clause 7.10.1, the Borrower and the Agent fail to agree in writing on a substitute basis for determining the rate of interest, the Borrower will immediately prepay the relevant Commitment, together with any Break Costs, and the remaining Repayment Instalments shall be reduced pro rata. |
7.11 | Determinations conclusive The Agent shall promptly notify the Borrower of the determination of a rate of interest under this Clause 7 and each such determination shall (save in the case of manifest error) be final and conclusive. |
8 | Indemnities |
8.1 | Transaction expenses The Borrower will, within fourteen (14) days of the Security Agent's or the Agent's written demand, pay the Security Agent or the Agent (for the account of the Finance Parties) (as applicable) the amount of all costs and expenses (including legal fees and Value Added Tax or any similar or replacement tax if applicable) reasonably incurred by the Finance Parties or any of them in connection with: |
8.1.1 | the negotiation, preparation, printing, execution and registration of the Finance Documents (whether or not any Finance Document is actually executed or registered and whether or not all or any part of the Loan is advanced); |
8.1.2 | any amendment, addendum or supplement to any Finance Document (whether or not completed); and |
8.1.3 | any other document which may at any time be required by a Finance Party to give effect to any Finance Document or which a Finance Party is entitled to call for or obtain under any Finance Document (including, without limitation but subject to Clause 10.11 ( Valuations ), any valuation of the Vessels). |
8.2 | Funding costs The Borrower shall indemnify each Finance Party, by payment to the Agent (for the account of that Finance Party) on the Agent's written demand against all losses and costs incurred or sustained by that Finance Party if, for any reason, a Drawing is not advanced to the Borrower after the relevant Drawdown Notice has been given to the Agent, or is advanced on a date other than that requested in the Drawdown Notice (unless, in either case, as a result of any default by a Finance Party). |
8.3 | Break Costs The Borrower shall indemnify each Finance Party, by payment to the Agent (for the account of that Finance Party) on the Agent's written demand against all costs, losses, premiums or penalties incurred by that Finance Party as a result of its receiving any prepayment of all or any part of the Loan (whether pursuant to Clause 6 (Prepayment) or otherwise) on a day other than the last day of an Interest Period for the Loan or relevant part of the Loan, or any other payment under or in relation to the Finance Documents on a day other than the due date for payment of the sum in question, including (without limitation) any losses or costs incurred in liquidating or re-employing deposits from third parties acquired to effect or maintain all or any part of the Loan, and any liabilities, expenses or losses incurred by that Finance Party in terminating or reversing, or otherwise in connection with, any Master Agreement Transaction or any other interest rate and/or currency swap, transaction or arrangement entered into by that Finance Party to hedge any exposure arising under this Agreement, or in terminating or reversing, or otherwise in connection with, any open position arising under this Agreement or the Master Agreement. |
8.4 | Currency indemnity In the event of a Finance Party receiving or recovering any amount payable under a Finance Document in a currency other than the Currency of Account, and if the amount received or recovered is insufficient when converted into the Currency of Account at the date of receipt to satisfy in full the amount due, the Borrower shall, on the Agent's written demand, pay to the Agent for the account of the relevant Finance Party such further amount in the Currency of Account as is sufficient to satisfy in full the amount due and that further amount shall be due to the Agent on behalf of the relevant Finance Party as a separate debt under this Agreement. |
8.5 | Increased costs (subject to Clause 8.6 (Exceptions to increased costs)) If, by reason of the introduction of any law, or any change in any law, or any change in the interpretation or administration of any law, or compliance with any request or requirement from any central bank or any fiscal, monetary or other authority occurring after the date of this Agreement: |
8.5.1 | a Finance Party (or the holding company of a Finance Party) shall be subject to any Tax with respect to payment of all or any part of the Indebtedness (other than Tax on overall net income); or |
8.5.2 | the basis of Taxation of payments to a Finance Party in respect of all or any part of the Indebtedness shall be changed; or |
8.5.3 | any reserve requirements shall be imposed, modified or deemed applicable against assets held by or deposits in or for the account of or loans by any branch of a Finance Party; or |
8.5.4 | the manner in which a Finance Party allocates capital resources to its obligations under this Agreement and/or the Master Agreement or any ratio (whether cash, capital adequacy, liquidity or otherwise) which a Finance Party is required or requested to maintain shall be affected; or |
8.5.5 | there is imposed on a Finance Party (or on the holding company of a Finance Party) any other condition in relation to the Indebtedness or the Finance Documents; |
8.6 | Exceptions to increased costs Clause 8.5 ( Increased costs ) does not apply to the extent any additional cost or reduced return referred to in that Clause is: |
8.6.1 | compensated for by a payment made under Clause 8.10 ( Taxes ); or |
8.6.2 | compensated for by a payment made under Clause 17.3 ( Grossing-up ); or |
8.6.3 | compensated for by the payment of the Mandatory Cost; or |
8.6.4 | attributable to the wilful breach by the relevant Finance Party (or the holding company of that Finance Party) of any law or regulation. |
8.7 | Events of Default The Borrower shall indemnify each Finance Party from time to time, by payment to the Agent (for the account of that Finance Party) on the Agent's written demand, against all losses, costs and liabilities incurred or sustained by that Finance Party as a consequence of any Event of Default. |
8.8 | Enforcement costs The Borrower shall pay to the Agent (for the account of each Finance Party) on the Agent's written demand the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document including (without limitation) any losses, costs and expenses which that Finance Party may from time to time sustain, incur or become liable for by reason of that Finance Party being mortgagee of a Vessel and/or a lender to the Borrower, or by reason of that Finance Party being deemed by any court or authority to be an operator or controller, or in any way concerned in the operation or control, of a Vessel. |
8.9 | Other costs The Borrower shall pay to the Agent (for the account of each Finance Party) on the Agent's written demand the amount of all sums which that Finance Party may pay or become actually or contingently liable for on account of a Collateral Owner in connection with a Vessel (whether alone or jointly or jointly and severally with any other person) including (without limitation) all sums which that Finance Party may pay or guarantees which it may give in respect of the Insurances, any expenses incurred by that Finance Party in connection with the maintenance or repair of a Vessel or in discharging any lien, bond or other claim relating in any way to a Vessel, and any sums which that Finance Party may pay or guarantees which it may give to procure the release of a Vessel from arrest or detention. |
8.10 | Taxes The Borrower shall pay all Taxes to which all or any part of the Indebtedness or any Finance Document may be at any time subject (other than Tax on a Finance Party's overall net income) including without limitation all Taxes arising from or in connection with the Chapter 11 Proceedings and shall indemnify the Finance Parties, by payment to the Agent (for the account of the Finance Parties) on the Agent's written demand, against all liabilities, costs, claims and expenses resulting from any omission to pay or delay in paying any such Taxes. |
8.11 | Litigation The Borrower shall, promptly on the Agent's request, reimburse the Lenders for, and keep the Lenders fully indemnified in respect of all liabilities, damages, costs and claims sustained or incurred by the Lenders in connection with the Finance Documents or in connection with the Chapter 11 Proceedings or the performance of its duties and obligations, or the exercise of its rights, powers, discretions or remedies under or pursuant to any Finance Document or in connection with the Chapter 11 Proceedings including, without limitation, in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Finance Parties to the extent not paid by the Security Parties and not arising solely from the Lenders' gross negligence or wilful misconduct. |
9 | Fees |
9.1 | Commitment fee The Borrower shall pay to the Agent (for the account of the Lenders in proportion to their Commitments) a fee computed at the rate of one point twenty five per cent (1.25%) per annum on the undrawn amount of the Loan from time to time from the date of this Agreement until the earlier of the Drawdown Date in respect of the final Drawing and the Availability Termination Date. The accrued commitment fee is payable on the last day of each successive period of three months from the date of this Agreement and on the earlier of the Drawdown Date in respect of the final Drawing and the Availability Termination Date. |
9.2 | Upfront fee The Borrower shall pay to the Agent (for the account of the Lenders in proportion to their Commitments) an upfront fee in the amount of two million five hundred thirty thousand Dollars ($2,530,000) on or before 20 August 2010. |
9.3 | Agency fee The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter. |
9.4 | Security Agency fee The Borrower shall pay to the Security Agent (for its own account) a security agency fee in the amount and terms agreed in the Fee Letter. |
9.5 | Documentation fee The Borrower shall pay to the Security Agent (for its own account) a documentation fee in the amount and terms agreed in the Fee Letter. |
10 | Security and Application of Moneys |
10.1 | Security Documents As security for the payment of the Indebtedness, the Borrower shall execute and deliver to the Security Agent or cause to be executed and delivered to the Security Agent the following documents in such forms and containing such terms and conditions as the Security Agent shall require: |
10.1.1 | first preferred mortgages over the Vessels; |
10.1.2 | first priority deeds of assignment of the Insurances, the Earnings and the Requisition Compensation of the Vessels and, in respect of Vessel M, the Post-Delivery Warranties (provided the relevant Seller has assigned the Post-Delivery Warranties to the relevant Collateral Owner); |
10.1.3 | a guarantee and indemnity from each Guarantor; |
10.1.4 | a first priority account security agreement or account security agreements over the Accounts and all amounts from time to time standing to the credit of the Accounts; |
10.1.5 | first priority pledges of all the issued shares of each Collateral Owner; |
10.1.6 | deposit account control agreements in respect of the operation of the Accounts; and |
10.1.7 | a first priority deed of charge over the Master Agreement Benefits. |
10.2 | Accounts The Borrower shall: |
10.2.1 | procure that each Collateral Owner maintains its Earnings Account with the Account Holder; and |
10.2.2 | procure that the Collateral Owners maintain the Master Account with the Account Holder, |
10.3 | Earnings The Borrower shall procure that all Earnings and any Requisition Compensation are credited to the Earnings Accounts. |
10.4 | Deposit The Borrower shall procure that each Collateral Owner shall deposit into the relevant Earnings Account or into the Master Account a minimum amount of seven hundred fifty thousand Dollars ($750,000) on or before the Drawdown Date of the relevant Tranche. The respective balance standing to the credit of such Earnings Account or the Master Account shall remain until 30 September 2010 and, after 30 September 2010 and at all times during the Facility Period in the Master Account to satisfy the Borrower's obligations under Clause 12.2.1 ( Loan minimum liquidity ). |
10.5 | Relocation of Accounts At any time following the occurrence and during the continuation of a Default, the Agent may without the consent of the Borrower or the |
10.6 | Access to information The Borrower agrees that the Security Agent (and its nominees) may from time to time during the Facility Period review the records held by the Account Holder (whether in written or electronic form) in relation to the Accounts, and irrevocably waives any right of confidentiality which may exist in relation to those records. |
10.7 | Application after acceleration From and after the giving of notice to the Borrower by the Agent under Clause 13.2 ( Acceleration ), the Borrower shall procure that all sums from time to time standing to the credit of any of the Accounts are immediately transferred to the Agent for application in accordance with Clause 10.8 (General application of moneys) and the Borrower irrevocably authorises the Agent to instruct the Account Holder to make those transfers. |
10.8 | General application of moneys The Borrower, subject to Clause 10.9 (Application of moneys on sale or Total Loss), irrevocably authorises and shall procure that each Collateral Owner irrevocably authorises the Agent and the Security Agent to apply all sums which any of them may receive: |
10.8.1 | pursuant to a sale or other disposition of a Vessel or any right, title or interest in a Vessel; or |
10.8.2 | by way of payment of any sum in respect of the Insurances, Earnings or Requisition Compensation; or |
10.8.3 | by way of transfer of any sum from any of the Accounts; or |
10.8.4 | otherwise arising under or in connection with any Security Document, |
(a) | firstly, on a pari passu and pro rata basis, all costs, charges, fees and expenses (other than interest and principal) of the Agent, the Security Agent, the Mandated Lead Arrangers and the Account Holder due under the Finance Documents; |
(b) | secondly, on a pari passu and pro rata basis, all costs, charges, fees and expenses (other than interest and principal) of the Lenders, the Bookrunner and the Swap Providers due under the Finance Documents; |
(c) | thirdly, on a pari passu basis between the Finance Parties and pro rata basis between the Tranches, all interest due under the Finance Documents; |
(d) | fourthly, on a pro rata basis between the Tranches, any principal due and unpaid under this Agreement; |
(e) | fifthly, on a pro rata basis between the Tranches, any other sum due and unpaid under the Finance Documents; and |
(f) | sixthly, any balance shall be paid to the Borrower. |
10.9 | Application of moneys on sale or Total Loss The Borrower irrevocably authorises and shall procure that each Collateral Owner irrevocably authorises the Agent and the Security Agent to apply all sums which either of them may receive pursuant to a sale by that Collateral Owner of its Vessel or a Total Loss of its Vessel in or towards satisfaction of the prepayment due and payable by virtue of that sale or Total Loss under Clause 6.3 ( Mandatory prepayment on sale or Total Loss ), but the Borrower's obligation to make that prepayment shall not be affected if those sums are insufficient to satisfy that obligation. |
10.10 | Additional security If at any time the aggregate of the Fair Market Value of the Vessels and the value of any additional security (as determined conclusively by appropriate advisers appointed by the Agent (in the case of other charged assets), and determined by the Agent in its discretion (in all other cases)) for the time being provided to the Security Agent under this Clause 10.10 is less than one hundred and thirty five per cent (135%) of the aggregate of the amount of the Loan then outstanding and the amount certified by the Swap Providers to be the amount which would be payable by the Borrower to the Swap Providers under the Master Agreement if an Early Termination Date were to occur at that time, the Borrower shall, within thirty (30) days of the Agent's request, at the Borrower's option: |
10.10.1 | pay to the Security Agent or to its nominee a cash deposit in the amount of the shortfall to be secured in favour of the Security Agent as additional security for the payment of the Indebtedness; or |
10.10.2 | give to the Security Agent other additional security in amount and form acceptable to the Security Agent, acting upon the instructions of the Majority Lenders; or |
10.10.3 | prepay the amount of the Indebtedness which will ensure that the aggregate of the Fair Market Value of the Vessels and the value of any additional security is not less than one hundred and thirty five per cent (135%) of the Indebtedness. |
10.11 | Valuations The Borrower shall provide at the Agent's request not less than two (2) valuations per annum from two Approved Brokers appointed by the Borrower (determined in accordance with the definition of Fair Market Value) on or around 30 June and 31 December of each calendar year (provided that two valuations provided in the same calendar year shall be (i) given with at least four (4) months' interval and (ii) at the Borrower's expense) for the purpose of determining the Fair Market Value of the Vessels and monitoring compliance with Clause 10.10 ( Additional security ). Following an Event of Default, the Agent shall be entitled to request additional valuations (determined in accordance with the definition of Fair Market Value) at the Borrower's expense at any time. |
11 | Representations |
11.1 | Representations The Borrower makes the representations and warranties set out in this Clause 11.1 to each Finance Party on the date of this Agreement. |
11.1.1 | Status Each Security Party (which is not an individual) is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation and has the power to own its assets and carry on its business as it is being conducted. |
11.1.2 | Binding obligations The obligations expressed to be assumed by each Security Party in each Finance Document to which it is a party are subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 3 ( Conditions of Utilisation) , legal, valid, binding and enforceable obligations. |
11.1.3 | Non-conflict with other obligations The entry into and performance by each Security Party of, and the transactions contemplated by, the Finance Documents do not conflict with: |
(a) | any law or regulation applicable to that Security Party; |
(b) | the constitutional documents of that Security Party; or |
(c) | any document binding on that Security Party or any of its assets, |
11.1.4 | Power and authority Each Security Party has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is or is to become a party and the transactions contemplated by those Finance Documents. |
11.1.5 | Validity and admissibility in evidence All consents, licences, approvals, authorisations, filings and registrations required or desirable: |
(a) | to enable each Security Party lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party or to enable each Finance Party to enforce and exercise all its rights under the Finance Documents; and |
(b) | to make the Finance Documents to which any Security Party is a party admissible in evidence in its jurisdiction of incorporation, |
11.1.6 | Governing law and enforcement The choice of a particular law as the governing law of any Finance Document expressed to be governed by that law will be recognised and enforced in the jurisdiction of incorporation of each relevant Security Party, and any judgment obtained in the jurisdiction |
11.1.7 | Deduction of Tax No Security Party is required under the law of its jurisdiction of incorporation to make any deduction for or on account of Tax from any payment it may make under any Finance Document. |
11.1.8 | No filing or stamp taxes (a) Under the law of the jurisdiction of incorporation of each relevant Security Party it is not necessary that the Finance Documents (other than the Security Documents) be filed, recorded or enrolled with any court or other authority in that jurisdiction, (b) under the law of the jurisdiction of the flag state of a Vessel then subject to a Mortgage, it is not necessary that the Finance Documents (other than the Mortgage) be filed, recorded or enrolled with any court or other authority in that jurisdiction or (c) in either case, that any stamp, registration (other than registration fees in connection with the Mortgages) or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents. |
11.1.9 | No default No Default or Event of Default is continuing or might reasonably be expected to result from the advance of any Drawing. |
11.1.10 | No misleading information Any factual information provided by any Security Party to any Finance Party was true and accurate in all material respects as at the date it was provided. |
11.1.11 | Pari passu ranking The payment obligations of each Security Party under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally. |
11.1.12 | No proceedings pending or threatened No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency have been started or (to the best of the Borrower's knowledge threatened) which, if adversely determined, might reasonably be expected to have a materially adverse effect on the business, assets, financial condition or credit worthiness of any Security Party. |
11.1.13 | Disclosure of material facts The Borrower is not aware of any material facts or circumstances which have not been disclosed to the Agent and which might, if disclosed, have adversely affected the decision of a person considering whether or not to make loan facilities of the nature contemplated by this Agreement available to the Borrower. |
11.1.14 | No established place of business in the UK No Security Party has an established place of business in the United Kingdom. |
11.1.15 | Completeness of Relevant Documents The copies of any Relevant Documents provided or to be provided by the Borrower to the Agent in accordance with Clause 3 ( Conditions of Utilisation ) are, or will be, true and accurate copies of the originals and represent, or will represent, the full |
11.1.16 | Ownership and control of Collateral Owners Each Collateral Owner is a Wholly-Owned Subsidiary of the Borrower and is controlled by the Borrower. |
11.1.17 | Money Laundering In relation to the borrowing by the Borrower of the Loan, the performance and discharge of its obligations and liabilities under the Security Documents and the transactions and other arrangements effected or contemplated by the Security Documents to which the Borrower or the relevant Collateral Owner is a party, the Borrower is acting for its own account and that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure which has been implemented to combat "money laundering" (as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European Communities). |
11.2 | Repetition Each representation and warranty in Clause 11.1 ( Representations ) is deemed to be repeated by the Borrower by reference to the facts and circumstances then existing on the date of each Drawdown Notice and the first day of each Interest Period. |
12 | Undertakings and Covenants |
12.1 | Information undertakings |
12.1.1 | Financial statements The Borrower shall and shall procure that the Collateral Owners shall, supply to the Agent as soon as the same become available, but in any event within ninety (90) days after the end of each of its financial years: |
(a) | the Borrower's audited consolidated (so as to include inter alia the Collateral Owners and Baltic Trading Limited and its Subsidiaries) financial statements for that financial year; |
(b) | Baltic Trading Limited's audited consolidated financial statements for that financial year; |
(c) | the Borrower's unaudited financial statements for that financial year (including the Collateral Owners and the other Subsidiaries of the Borrower but excluding Baltic Trading Limited and its Subsidiaries) together with the calculations and documentation that the Agent and the Security Agent may deem necessary in order to make the necessary reconciliations and off-setting against the |
(d) | each Collateral Owner's financial statements for that financial year, |
12.1.2 | Requirements as to financial statements Each set of financial statements delivered by the Borrower under Clause 12.1.1 (Financial statements ): |
(a) | shall be certified by the chief financial officer of the Borrower as fairly representing its financial condition and that of the Collateral Owners as at the date as at which those financial statements were drawn up; and |
(b) | shall be prepared using GAAP, and, in relation to any financial statements delivered by the Borrower in respect of the subsequent financial years, shall be prepared using accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, the Borrower notifies the Agent that there has been a material change in GAAP, the accounting practices or reference periods and the Borrower's auditors deliver to the Agent: |
(i) | a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and |
(ii) | sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Agent to make an accurate comparison between the financial position indicated in those financial statements and that indicated in the Original Financial Statements. |
12.1.3 | Interim financial statements The Borrower shall, and shall procure that each Collateral Owner shall, supply to the Agent as soon as the same become available, but in any event within forty five (45) days after the end of each quarter during each of its financial years: |
(a) | the Borrower's consolidated (so as to include inter alia the Collateral Owners and Baltic Trading Limited and its Subsidiaries) quarterly financial statements for that quarter; |
(b) | Baltic Trading Limited's unaudited consolidated financial statements for that quarter; |
(c) | the Borrower's unaudited financial statement for that quarter (including the Collateral Owners and the other Subsidiaries of the Borrower but excluding Baltic Trading Limited and its Subsidiaries) together with the calculations and documentation that the Agent and the Security Agent may deem necessary in order to make the necessary reconciliations and off-setting against the financial statements referred to in Clause 12.1.3 (a) and (b) above; and |
(d) | each Collateral Owner's unaudited financial statements for that quarter, |
12.1.4 | Information: miscellaneous The Borrower shall supply to the Agent: |
(a) | all documents which could reasonably be expected to have a material adverse effect on the business, assets, financial condition or creditworthiness of the Borrower or any Collateral Owner or the ability of a Security Party to perform its obligations under any Finance Document, which are dispatched by the Borrower or any Collateral Owner to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched. For the avoidance of doubt, this obligation does not include circulars to shareholders of a routine and non-material nature; |
(b) | promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Security Party, and which (i) might have a materially adverse effect on the business, assets, financial condition or credit worthiness of that Security Party and (ii) exceed the amount of seven million five hundred thousand Dollars ($7,500,000) in respect of the Borrower and the Threshold Amount in respect of a Collateral Owner; and |
(c) | promptly, such further information regarding the financial condition, business and operations of any Security Party as the Agent may reasonably request including, without limitation, cash flow analyses and details of the operating costs of any Vessel. |
12.1.5 | Notification of default |
(a) | The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence. |
(b) | Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it). |
12.1.6 | "Know your customer" checks If: |
(a) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; |
(b) | any change in the status of the Borrower after the date of this Agreement; or |
(c) | a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, |
12.2 | Financial covenants |
12.2.1 | Minimum liquidity The Borrower shall: |
(a) | procure that the Collateral Owners shall maintain minimum free cash of seven hundred fifty thousand Dollars ($750,000) per Vessel at all times during the Facility Period in the Master Account; and |
(b) | maintain on a consolidated basis a minimum free cash of seven hundred and fifty thousand Dollars ($750,000) per any vessel owned by the Borrower or a Subsidiary of the Borrower (including the Collateral Owners in accordance with Clause 12.2.1(a) above but excluding Baltic Trading Limited and its Subsidiaries as long as the Borrower does not own more than 50% of the economic interest in Baltic Trading Limited), as at the end of each fiscal quarter during the Facility Period. |
12.2.2 | Consolidated Interest Coverage Ratio The Borrower will not permit the Consolidated Interest Coverage Ratio for any Test Period, in each case taken |
12.2.3 | Maximum Leverage Ratio The Borrower will not permit the Leverage Ratio on the last day of any fiscal quarter of the Borrower commencing with the fiscal quarter ending on 30 June 2015, to be greater than 5.50:1.00. |
12.2.4 | Minimum Consolidated Net Worth The Borrower shall not permit its Consolidated Net Worth to be less than the Minimum Consolidated Net Worth at all times during the Facility Period (except during the Waiver Period). |
12.2.5 | Consolidated Indebtedness During the Waiver Period, the Borrower will not permit, as of the last day of any fiscal quarter during such period, the aggregate amount of its interest-bearing Consolidated Indebtedness to exceed seventy per cent (70%) of the aggregate amount of its interest-bearing Consolidated Indebtedness plus its Consolidated Net Worth at such time. |
12.2.6 | Most Favoured Lender The Borrower shall not enter into any waiver, modification or amendment to the financial covenants (or to definitions pertaining to the financial covenants), interest margin or maturity date set out in the Metrostar Credit Agreement, nor enter into any Additional Facility after the Effective Date which has a maturity date earlier than the Final Maturity Date or which grants more favourable provisions or treatment to the lenders or financiers thereunder in connection with financial covenants (or to definitions pertaining to the financial covenants), interest margin or maturity date unless each of the Finance Parties receives the benefit of such more favourable provisions at the same time and on the same terms. |
12.3 | General undertakings |
12.3.1 | Authorisations The Borrower shall, and shall procure that each Collateral Owner shall, promptly: |
(a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
(b) | supply certified copies to the Agent of, |
12.3.2 | Compliance with laws The Borrower shall, and shall procure that each Collateral Owner shall, comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents. |
12.3.3 | Conduct of business The Borrower shall, and shall procure that each Collateral Owner shall, carry on and conduct its business in a proper and efficient manner, file all requisite tax returns and pay all tax which becomes due and payable (except where contested in good faith).] |
12.3.4 | Evidence of good standing The Borrower will from time to time if requested by the Agent provide the Agent with evidence in form and substance satisfactory to the Agent that the Security Parties and all corporate shareholders of any Security Party remain in good standing. |
12.3.5 | Negative pledge and no disposals The Borrower shall procure that no Collateral Owner shall, without the prior written consent of the Agent, create nor permit to subsist any Encumbrance or other third party rights (other than a Permitted Encumbrance) over any of its present or future assets or undertaking nor dispose of any of those assets or of all or part of that undertaking. |
12.3.6 | Merger The Borrower shall procure that no Collateral Owner shall enter into any amalgamation, demerger, merger or corporate reconstruction. The Borrower shall not, without the prior written consent of the Agent, enter into any amalgamation, demerger, merger or corporate reconstruction except, in the case of amalgamation, demerger or merger only if (a) no Event of Default has occurred and is continuing, (b) no Change of Control would result from such amalgamation, demerger or merger, (c) the surviving entity in such amalgamation, demerger or merger will be the Borrower and (d) the Borrower provides to the Agent not less than ten (10) Business Days in advance of such amalgamation, demerger or merger, an officer's certificate signed by the Chief Financial Officer of the Borrower (i) certifying that no Event of Default has occurred and is continuing (or would arise after giving effect to the intended consolidation or merger), (ii) attaching pro-forma financial statements of the Borrower demonstrating the compliance of the Borrower with all covenants under this Agreement after giving effect to such merger or consolidation, (iii) providing a summary of the proposed amalgamation, demerger or merger together with details of the legal and structural changes that will result from such amalgamation, demerger or merger and (e) the Borrower provides the Agent with any other information reasonably required in respect of such amalgamation, demerger or merger. |
12.3.7 | Change of business The Borrower shall not, and shall procure that no Collateral Owner shall, without the prior written consent of the Agent make any substantial change to the general nature of its business from that carried on at the date of this Agreement. |
12.3.8 | No other business The Borrower shall procure that no Collateral Owner shall without the prior written consent of the Agent engage in any business other than the ownership, operation, chartering and management of its Vessel. |
12.3.9 | No place of business in UK The Borrower shall not have, and shall procure that no Collateral Owner shall have, an established place of business in the United Kingdom at any time during the Facility Period. |
12.3.10 | No Financial Indebtedness |
(a) | The Borrower shall procure that no Collateral Owner shall, without the prior written consent of the Agent, incur any Financial Indebtedness except: |
(i) | under the Finance Documents to which it is a party; or |
(ii) | unsecured Financial Indebtedness from the Borrower or affiliates of the Borrower and provided that the Borrower procures that any Financial Indebtedness incurred by the Collateral Owners to the Borrower or affiliates of the Borrower shall be subordinated to the Indebtedness, in the case of any Financial Indebtedness incurred by the Collateral Owners to the Borrower, on the terms set out in Clause 12.3.10(d) and, in the case of any Financial Indebtedness incurred by the Collateral Owners to an affiliate of the Borrower, on terms acceptable to the Agent; or |
(iii) | Financial Indebtedness incurred by Genco Auvergne Limited by way of a counter-indemnity for an amount of $900,000 in favour of Skandinaviska Enskilda Banken AB (publ) in order to allow the release of m.v. "GENCO AUVERGNE" from the arrest in connection with certain claims of a charterparty dated 7 August 2012 made between Genco Auvergne Limited as owner and Hamburg Bulk Carriers GmbH & Co KG as charterer. |
(b) | During the Waiver Period, the Borrower shall not, and shall procure that none of its Subsidiaries (other than Baltic Trading Limited and its Subsidiaries) shall, without the prior written consent of the Agent, incur any Financial Indebtedness in connection with the acquisition of a vessel exceeding sixty per cent (60%) of the lesser of (i) the contract price of such vessel and (ii) the fair market value of such vessel. |
(c) | The Borrower will not, and will not permit any of its Subsidiaries to, permit the principal amount of the Financial Indebtedness under the Metrostar Loan Agreement to exceed at any time the outstanding principal amount of Financial Indebtedness under the Metrostar Loan Agreement as of the Effective Date. The Borrower may replace, or refinance, the outstanding Financial Indebtedness under the Metrostar Loan Agreement provided that such replacement financing or refinancing will not result, at any time during the Waiver Period, in an increase of the principal amount of Financial Indebtedness outstanding on the effective date of such replacement financing or refinancing. |
(d) | The Borrower hereby subordinates any and all debts, liabilities and other obligations owed to the Borrower by any Collateral Owner (the " Subordinated Obligations ") to the Indebtedness to the |
(i) | except when an Event of Default has occurred and is continuing (including the commencement and continuation of any proceeding under any Insolvency Law relating to any Collateral Owner), the Borrower may receive payments from any Collateral Owner on account of the Subordinated Obligations. After the occurrence of an Event of Default which is continuing (including the commencement and continuation of any proceeding under any Insolvency Law relating to any Collateral Owner), however, unless the Agent otherwise agrees, the Borrower shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations; |
(ii) | in the event of any proceedings under any Insolvency Law relating to any Collateral Owner, the Borrower agrees that the Agent and the other Finance Parties shall be entitled to receive payment in full in cash of all the Indebtedness (including all interest and expenses accruing after the commencement of proceedings under any Insolvency Law, whether or not constituting an allowed claim in such proceeding (the " Post Claim Interest ")) before the Borrower receives payment of any Subordinated Obligations; |
(iii) | upon the occurrence of an Event of Default which is continuing (including the commencement and continuation of any proceeding under any Insolvency Law relating to any Collateral Owner), the Borrower shall, if the Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Agent and the other Finance Parties and deliver such payments to the Agent on account of the Indebtedness (including all Post Claim Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Borrower under the other provisions of this Agreement; and |
(iv) | upon the occurrence of an Event of Default which is continuing (including the commencement and continuation of any proceeding under any Insolvency Law relating to any Collateral Owner), the Agent is authorised and empowered (but without any obligation to so do), in its discretion, (x) in the name of the Borrower, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Indebtedness (including any and all Post Claim Interest), and (y) to require the Borrower (1) to collect |
12.3.11 | No substantial liabilities Except in the ordinary course of business and as otherwise permitted under the terms of this Agreement, the Borrower shall procure that no Collateral Owner shall, without the prior written consent of the Agent incur any liability to any third party which is in the Agent's opinion of a substantial nature. |
12.3.12 | No loans or advances The Borrower: |
(a) | shall procure that no Collateral Owner shall, without the prior written consent of the Agent, make any loan or advance to any person except for the relevant Guarantee, and provided that no Event of Default has occurred and is continuing, loans made in the ordinary course of business in connection with the chartering, operation or repair of its Vessel and loans to other Collateral Owners or to the Borrower; |
(b) | shall not, without the prior written consent of the Agent, make any loan or advances to any person except, and provided that no Event of Default has occurred and is continuing: |
(i) | loans or advances to the Collateral Owners or to affiliates of the Borrower in the ordinary course of business; |
(ii) | loans or advances in the ordinary course of business to its employees so long as the aggregate principal amount thereof at any time outstanding which is made on or after the date hereof (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed five hundred thousand Dollars ($500,000); and |
(iii) | loans or advances to Wholly-Owned Subsidiaries of the Borrower provided that the Borrower is permitted to make such loans or advances to Wholly-Owned Subsidiaries of the Borrower under any Genco Facility and any other loan facility agreement the Borrower may, from time to time, enter into. |
12.3.13 | No dividends The Borrower will not, and will not permit any of the Collateral Owners to, authorize, declare or pay any Dividends with respect to the Borrower or any of the Collateral Owners, except that: |
(a) | any Collateral Owner may pay Dividends to the Borrower or any other Collateral Owner; |
(b) | the Borrower may purchase or redeem shares of common stock in the Borrower in market purchases under Rule 10b-18 of the |
(i) | no Event of Default has occurred and is continuing at the time of any such purchases; |
(ii) | no Event of Default would arise after giving effect to any such purchases; |
(iii) | there is no breach of a financial covenant set out in Clause 12.2 ( Financial Covenants ) and there will not be any breach as a result of the payment of such Dividends; and |
(iv) | the Borrower in the exercise of its rights under this Clause 12.3.13 shall not be permitted to purchase or redeem shares beneficially owned directly or indirectly by Peter Georgiopoulos; |
(c) | so long as the Borrower is in compliance with the provisions set out in Clause 10.10 ( Additional Security ), the Borrower may authorise, declare and distribute a dividend of Rights (as such term is defined and which are convertible into other securities as set forth in the Shareholder Rights Agreement) as contemplated by the Shareholder Rights Agreement; |
(d) | the Borrower may make, pay or declare cash Dividends; provided that, for all Dividends paid pursuant to this Clause 12.3.13(b): |
(i) | Dividends shall be paid within 90 days of the declaration thereof; |
(ii) | Dividends paid in respect of a fiscal quarter shall only be paid after the date of delivery of quarterly or annual financial statements for such fiscal quarter, pursuant to Clause 12.1.1 (Financial statements ) and on or prior to forty five (45) days after the last day of the immediately succeeding fiscal quarter; |
(iii) | no Default or Event of Default has occurred and is continuing at the time of declaration; |
(iv) | no Default or Event of Default has occurred and is continuing (or would arise after giving effect thereto) at the time of payment; |
(v) | there is no breach of a financial covenant set out in Clause 12.2 ( Financial Covenants ) and there will not be any breach as a result of the payment of such Dividends; |
(vi) | on or prior to the payment of a Dividend, the Borrower shall deliver to the Agent an officer's certificate signed by the senior financial officer of the Borrower, certifying that |
12.3.14 | Inspection of records The Borrower will permit the inspection of its financial records and accounts from time to time by the Agent or its nominee during regular business hours and under the guidance of officers of the Borrower. |
12.3.15 | No change in Relevant Documents The Borrower shall procure that, without the prior written consent of the Agent, there shall be no termination of, alteration to (save that, in respect of the Time Charters, no prior written consent of the Agent shall be required, to the extent there is no material adverse effect to the business, assets, financial condition or creditworthiness of the Borrower or any Collateral Owner or on the ability of a Security Party to perform its obligations under any Finance Document as a consequence of such alteration), or waiver of any term of, any of the Relevant Documents which are not Finance Documents. |
12.3.16 | No dealings with Master Agreement The Borrower shall not assign, novate or encumber or in any other way transfer any of its rights or obligations under the Master Agreement, nor enter into any interest rate exchange or hedging agreement in respect of this Agreement with anyone other than the Swap Providers, except in accordance with the provisions of Clause 12.3.18 ( Right of first refusal ). |
12.3.17 | No change in shareholding The Borrower shall procure that no Collateral Owner shall, without prior written consent of the Agent, permit any change in its beneficial ownership or control. |
12.3.18 | Right of first refusal The Borrower shall grant to the Swap Providers the right of first refusal on a competitive basis for entering into any form of master agreement relating to interest or currency exchange transactions in respect of the obligations under this Agreement, provided always that the Borrower's obligations under such master agreement shall be secured under the Security Documents. |
12.3.19 | Hedging Any Master Agreement Transactions shall only be of non-speculative interest hedging nature and shall be limited to the following instruments: interest rate swaps, interest rate caps, interest rate floors and interest rate swaptions or a combination of these products on a non-leveraged basis. The purpose of such Master Agreement Transactions shall be the hedging of the Borrower's exposure under this Agreement to fluctuations in LIBOR arising from the funding of one or more Tranches or any part thereof for a period expiring no later than the relevant Final Maturity Date. |
12.3.20 | Change of name or principal place of business The Borrower shall procure that each Collateral Owner shall, give reasonably advance notice to the Agent of any intended change in the name or place of business of a Security Party. |
12.4 | Vessel covenants and Insurance undertakings |
12.4.1 | The Borrower covenants, and shall procure that each Collateral Owner covenants, to ensure at its own expense throughout the Facility Period that: |
(a) | each Vessel remains insured against marine risks and war risks (including increased value, excess risk, war risks P&I and terrorism risk) on full conditions and on an agreed value basis for an amount which is the greater from time to time of (a) her Fair Market Value and (b) an amount which equals one hundred and twenty per cent (120%) of the amount of the relevant Tranche then outstanding; and |
(b) | each Vessel remains entered in a protection and indemnity association in both protection and indemnity classes, or remains otherwise insured against protection and indemnity risks and liabilities (including P&I excess war risk cover) with a club that is a member of the International Group of Protection and Indemnity Associations (IGA); and |
(c) | each Vessel remains insured against oil pollution caused by that Vessel for such amounts as the Security Agent may from time to time approve unless that risk is covered to the satisfaction of the Security Agent by that Vessel's protection and indemnity entry or insurance; and |
(d) | each Vessel remains insured against loss of hire for 14/180/180 at daily hire (containing an automatic reinstatement clause for such amounts as the Security Agent may from time to time approve). |
12.4.2 | The Lenders agree that, if and for so long as a Vessel may be laid up with the approval of the Security Agent, the relevant Collateral Owner may at its own expense take out port risk insurance on that Vessel in place of hull and machinery insurance. |
12.4.3 | The Borrower undertakes, and shall procure that each Collateral Owner undertakes, to place the Obligatory Insurances in such markets, in such currency, on such terms and conditions, and with such brokers, underwriters and associations as the Security Agent shall have previously approved in writing. The Borrower shall not, and shall procure that no Collateral Owner shall, alter the terms of any of the Obligatory Insurances nor allow any person to be co-assured under any of the Obligatory Insurances without the prior written consent of the Security Agent (except for the Borrower or any Managers or any crewing agents). The Borrower shall procure that any permitted co-assured shall, if so required by the |
12.4.4 | The Borrower undertakes, and shall procure that each Collateral Owner undertakes, duly and punctually to pay all premiums, calls and contributions, and all other sums at any time payable in connection with the Obligatory Insurances, and, at its own expense, to arrange and provide any guarantees from time to time required by any protection and indemnity or war risks association. From time to time at the Security Agent's request, the Borrower will, and shall procure that each Collateral Owner will, provide the Security Agent with evidence satisfactory to the Security Agent that such premiums, calls, contributions and other sums have been duly and punctually paid; that any such guarantees have been duly given; and that all declarations and notices required by the terms of any of the Obligatory Insurances to be made or given by or on behalf of the Borrower or the Collateral Owners to brokers, underwriters or associations have been duly and punctually made or given. |
12.4.5 | The Borrower will, and shall procure that each Collateral Owner will, comply in all respects with all terms and conditions of the Obligatory Insurances and will make all such declarations to brokers, underwriters and associations as may be required to enable each Vessel to operate in accordance with the terms and conditions of the Obligatory Insurances. The Borrower will not, and shall procure that no Collateral Owner will, do, nor permit to be done, any act, nor make, nor permit to be made, any omission, as a result of which any of the Obligatory Insurances may become liable to be suspended, cancelled or avoided, or may become unenforceable, or as a result of which any sums payable under or in connection with any of the Obligatory Insurances may be reduced or become liable to be repaid or rescinded in whole or in part. In particular, but without limitation, the Borrower will not, and shall procure that no Collateral Owner will, permit a Vessel to be employed other than in conformity with the Obligatory Insurances without first taking out additional insurance cover in respect of that employment in all respects to the satisfaction of the Security Agent, and the Borrower will, |
12.4.6 | The Borrower will, and shall procure that each Collateral Owner will, no later than fourteen days (or, in the case of war risks, no later than seven days), before the expiry of any of the Obligatory Insurances renew them and shall immediately give the Security Agent such details of those renewals as the Security Agent may require. |
12.4.7 | The Security Agent shall be at liberty at any time to take out through its own appointed broker, in its exclusive favour, pursuant to the Security Agent's own terms and conditions and at the Borrower's expense: |
(a) | Mortgagees Interest Insurance equal to 110% of the amount of the Loan outstanding from time to time, |
(b) | Mortgagees Interest Insurance Additional Perils (Pollution) equal to the amount of the Loan outstanding from time to time, unless a Collateral Owner has expressly undertaken and declared in writing, that its Vessel will not enter (i) U.S. territorial waters and/or the U.S. exclusive economic zone or (ii) provided the Security Agent has advised the Borrower of any other waters with pollution liability legislation and/or practice in force, which in the reasonable opinion of the Security Agent is equivalent to the U.S. Oil Pollution Act of 1990 - and/or the practice in force thereunder, such other waters as advised by the Security Agent, |
(c) | a Mortgagees Interest Insurance Additional Perils (Pollution and other P&I Risks), regardless of a Vessel's trade, if the P&I cover is less than the highest limit of indemnity offered by a club of the International Group of P&I Clubs or its possible successor. |
12.4.8 | The Borrower shall, and shall procure that each Collateral Owner shall, deliver to the Security Agent copies (and, if required by the Security Agent, the originals) of all policies, certificates of entry and other documents relating to the Insurances (including, without limitation, receipts for premiums, calls or contributions) and shall procure that letters of undertaking in such form as the Security Agent may reasonably approve shall be issued to the Security Agent by the brokers through which the Insurances are placed (or, in the case of protection and indemnity or war risks associations, by their managers). If a Vessel is at any time during the Facility Period insured under any form of fleet cover, the Borrower shall, and shall procure that the relevant Collateral Owner shall, procure that those letters of undertaking are in a form and content substantially the same as the standardised draft of Lloyds Market Insurance Broker's Committee including a fleet lien waiver. |
12.4.9 | The Borrower shall, and shall procure that each Collateral Owner shall, promptly provide the Security Agent with full information regarding any casualty or other accident or damage to any Vessel which is reasonably likely to lead to a payment or claim in excess of two million Dollars |
12.4.10 | The Borrower agrees that, at any time after the occurrence and during the continuation of an Event of Default, the Security Agent shall be entitled to collect from, sue for, recover from and give a good discharge to insurers for all claims in respect of any of the Insurances; to pay collecting brokers the customary commission on all sums collected in respect of those claims; to compromise all such claims or refer them to arbitration or any other form of judicial or non-judicial determination; and otherwise to deal with such claims in such manner as the Security Agent shall in its discretion think fit. |
12.4.11 | Whether or not an Event of Default shall have occurred or be continuing, the proceeds of any claim under any of the Insurances in respect of a Total Loss shall be paid to the Security Agent and applied by the Security Agent in accordance with Clause 10 (Security and Application of Moneys). |
12.4.12 | In the event of any dispute arising between any Collateral Owner and any broker, underwriter or association with respect to any obligation to make any payment to that Collateral Owner or to the Security Agent under or in connection with any of the Insurances, or with respect to the amount of any such payment, the Security Agent shall be entitled to settle that dispute directly with the broker, underwriter or association concerned. Any such settlement shall be binding on the Borrower and the relevant Collateral Owner. |
12.4.13 | The Security Agent agrees that any amounts which may become due under any protection and indemnity entry or insurance shall be paid to the relevant Collateral Owner to reimburse that Collateral Owner for, and in discharge of, the loss, damage or expense in respect of which they shall have become due, unless, at the time the amount in question becomes due, an Event of Default shall have occurred and be continuing, in which event the Security Agent shall be entitled to receive the amounts in question and to apply them either in reduction of the Indebtedness or, at the option of the Security Agent, to the discharge of the liability in respect of which they were paid. |
12.4.14 | The Borrower shall not, and shall procure that no Collateral Owner shall, settle, compromise or abandon any claim under or in connection with any of the Insurances (other than a claim of less than two million Dollars ($2,000,000) arising other than from a Total Loss) without the prior written consent of the Security Agent. |
12.4.15 | If any Collateral Owner fails to effect or keep in force the Obligatory Insurances, the Security Agent may (but shall not be obliged to) effect and/or keep in force such insurances on the relevant Vessel and such entries in protection and indemnity or war risks associations as the Security Agent in its discretion considers desirable, and the Security Agent may (but shall not be obliged to) pay any unpaid premiums, calls or contributions. The Borrower will, and shall procure that each Collateral Owner will, |
12.4.16 | The Borrower shall procure that each Collateral Owner shall comply strictly with the requirements of any legislation relating to pollution or protection of the environment which may from time to time be applicable to the relevant Vessel in any jurisdiction in which that Vessel shall trade and in particular (if that Vessel is to trade in the United States of America and Exclusive Economic Zone (as defined in the Act)) the Borrower shall procure that each Collateral Owner shall comply strictly with the requirements of the United States Oil Pollution Act 1990, as amended (the " Act "). Before any such trade is commenced and during the entire period during which such trade is carried on, the Borrower shall procure that each Collateral Owner shall: |
(a) | pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to that Borrower for its Vessel in the market; and |
(b) | if applicable, make all such quarterly or other voyage declarations as may from time to time be required by its Vessel's protection and indemnity association in order to maintain such cover, and promptly deliver to the Security Agent copies of such declarations if required; and |
(c) | submit its Vessel to such additional periodic, classification, structural or other surveys which may be required by its Vessel's protection and indemnity insurers to maintain cover for such trade and promptly deliver to the Security Agent copies of reports made in respect of such surveys if requested; and |
(d) | implement any recommendations contained in the reports issued following the surveys referred to in Clause (c) within the relevant time limits, and, if required, provide evidence satisfactory to the Security Agent that the protection and indemnity insurers are satisfied that this has been done; and |
(e) | in addition to the foregoing (if such trade is in the United States of America and Exclusive Economic Zone): |
(aa) | obtain and retain a certificate of financial responsibility under the Act in form and substance satisfactory to the United States Coast Guard and provide the Lender with evidence of the same if required; and |
(bb) | procure that the protection and indemnity insurances do not contain a US Trading Exclusion Clause or any other analogous provision and provide the Security Agent with evidence that this is so if required; and |
(cc) | comply strictly with any operational or structural regulations issued from time to time by any relevant authorities under the Act so that at all times its Vessel falls within the provisions which limit strict liability under the Act for oil pollution. |
12.5 | Vessel covenants and operation and maintenance undertakings |
12.5.1 | to keep each Vessel seaworthy and in a state of complete repair and in compliance with the requirements from time to time of all applicable laws, conventions and regulations and of her insurers; and |
12.5.2 | to maintain the registration of each Vessel under the flag of the Marshall Islands or such other flag acceptable to the Security Agent; to effect and maintain the recording of the relevant Mortgage with the Maritime Administrator of the Republic of the Marshall Islands; and not cause nor permit to be done any act or omission as a result of which that registration or that recording might be defeated or imperilled; and |
12.5.3 | to maintain each Vessel in a condition entitling that Vessel to the highest class applicable to vessels of her age and type with an Approved Classification Society free of overdue recommendations and qualifications; and |
12.5.4 | to comply with all laws, conventions and regulations applicable to each Collateral Owner or to each Vessel and to carry on board each Vessel all certificates and other documents which may from time to time be required to evidence such compliance; and |
12.5.5 | not without the prior written consent of the Security Agent to make, nor permit nor cause to be made, any material change in the structure, type or speed of any Vessel; and |
12.5.6 | to procure that all repairs to each Vessel or replacements of parts or equipment of each Vessel are effected in such a way as not to diminish the value of that Vessel and with replacement parts or equipment the property of the relevant Collateral Owner and free of all Encumbrances (other than the relevant Mortgage); and |
12.5.7 | to permit the Security Agent and all persons appointed by the Security Agent to board each Vessel from time to time during the Facility Period, without interfering with the operation of that Vessel, to inspect that Vessel's state and condition at the cost of the Borrower in respect of one inspection per calendar year (except if an Event of Default has occurred and is continuing, in which case the Borrower shall be liable for the costs of all inspections deemed necessary by the Security Agent) and, if that Vessel shall not be in a state and condition which complies with the requirements of the relevant Mortgage, to effect such repairs as shall in the opinion of the |
12.5.8 | immediately to notify the Security Agent of any arrest or detention of any Vessel, and to cause that Vessel to be released from arrest or detention as quickly as possible, and in any event within fourteen days from the date of arrest or detention, and immediately to notify the Security Agent in the same manner of the release of that Vessel; and |
12.5.9 | from time to time on request of the Security Agent to produce to the Security Agent written evidence satisfactory to the Security Agent confirming that the master and crew of each Vessel have no claims for wages beyond the ordinary arrears and that the master has no claim for disbursements other than those properly incurred by him in the ordinary course of trading of that Vessel on the voyage then in progress; and |
12.5.10 | not during the Facility Period and always subject to Clause 6.3 ( Mandatory prepayment on sale or Total Loss ) to sell, agree to sell, or otherwise dispose of, or agree to dispose of, its Vessel without the prior written consent of the Security Agent; and |
12.5.11 | not during the Facility Period to change the name of any Vessel without the prior written consent of the Security Agent; and |
12.5.12 | not during the Facility Period to lay any Vessel up without the prior written consent of the Security Agent; and |
12.5.13 | in the event of any requisition or seizure of any Vessel, to take all lawful steps to recover possession of that Vessel as soon as it is entitled to do so; and |
12.5.14 | to give to the Security Agent from time to time during the Facility Period on request such information as the Security Agent may reasonably require with regard to any Vessel's employment, position and state of repair and, on the Security Agent's request, to supply the Security Agent with copies of all charterparties and other contracts of employment relating to any Vessel and copies of any Vessel's deck and engine logs; and |
12.5.15 | to comply with all requirements from time to time of each Vessel's classification society and to give to the Security Agent from time to time during the Facility Period on request copies of all classification certificates of each Vessel and reports of surveys required by each Vessel's classification society (the relevant Collateral Owner by its execution of the relevant Mortgage irrevocably authorising the Security Agent to obtain such information and documents from the relevant Vessel's classification society as the Security Agent may from time to time require), and to notify the Security Agent immediately of any requirement or recommendation imposed by each Vessel's classification society; and |
12.5.16 | not during hostilities (whether or not a state of war shall formally have been declared and including, without limitation, any civil war) to permit any |
12.5.17 | not without the prior written consent of the Security Agent to let any Vessel on any demise charter or bareboat charter, or, after the expiry of the Time Charters, on any time charter, consecutive voyage charter or other contract of employment which (inclusive of any extension option) is capable of exceeding thirty eight (38) months nor to employ any Vessel in any way which might impair the security created by the Finance Documents; and |
12.5.18 | Intentionally left blank |
12.5.19 | unless the Borrower is in full compliance with Clause 12.5.17, not without the prior written consent of the Security Agent to enter into any agreement or arrangement for sharing the Earnings of any Vessel as long as such profit sharing arrangements are made between the Borrower or a Collateral Owner and a charterer; and |
12.5.20 | duly to perform (unless prevented by force majeure), and to take all necessary steps to enforce the performance by charterers and shippers of, all charterparties and other contracts of employment and all bills of lading and other contracts relating to each Vessel; and |
12.5.21 | not following the occurrence and during the continuation of an Event of Default to let any Vessel on charter or renew or extend any charter or other contract of employment of any Vessel, nor agree to do so, without the prior written consent of the Security Agent; and |
12.5.22 | to pay and discharge when due from time to time all taxes, levies, duties, fines and penalties imposed on any Vessel or the Earnings, or on the Collateral Owner, its income, profits, capital gains or any of its property; and |
12.5.23 | not at any time during the Facility Period without the prior written consent of the Security Agent (and then subject to such conditions as the Security Agent may impose) to create nor grant nor permit to exist any Encumbrance over any Vessel or any of the Assigned Property (as such term is defined in the relevant Mortgage) other than any Permitted Encumbrances existing from time to time; and |
12.5.24 | to notify the Security Agent immediately when the Borrower or a Collateral Owner becomes aware of any legal proceedings or arbitration involving a |
12.5.25 | not without the prior written consent of the Security Agent to put any Vessel into the possession of any person for the purpose of work or repairs estimated to cost more than, the Threshold Amount (except for repairs the cost of which is recoverable under the Insurances and in respect of which the insurers have agreed to make payment in accordance with any applicable loss payable clause and except for scheduled drydocking) unless that person shall have given an undertaking to the Security Agent on such terms as the Security Agent shall require not to exercise a lien on any Vessel for the cost of the work; and |
12.5.26 | to keep proper books of account in respect of each Vessel and the Earnings and as and when required by the Security Agent to make such books available for inspection on behalf of the Security Agent; and |
12.5.27 | to place and retain a certified copy of the relevant Mortgage on board the relevant Vessel and cause such certified copy of that Mortgage to be exhibited to any representative of the Security Agent and to place and keep displayed on each Vessel a framed printed notice in plain type reading as follows: |
12.5.28 | not without the prior written consent of the Security Agent to appoint anyone other than the Managers as commercial or technical managers of its Vessel nor to terminate nor materially vary the arrangements for the commercial or technical management of any Vessel, nor to permit the commercial or technical management of any Vessel to be sub-contracted or delegated to any third party; and |
12.5.29 | to take all reasonable precautions to prevent any infringements of any anti drug legislation in any jurisdiction in which any Vessel shall trade and in particular (if that Vessel is to trade in the United States of America) to take all reasonable precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America; and |
12.5.30 | to comply, or procure that the operator of each Vessel will comply, with the ISM Code (as the same may be amended from time to time) or any replacement of the ISM Code and in particular, without limitation, to: |
(a) | procure that that Vessel remains for the duration of the Facility Period subject to a safety management system developed and implemented in accordance with the ISM Code; and |
(b) | maintain for that Vessel throughout the Facility Period a valid and current SMC and provide a copy to the Agent; and |
(c) | procure that the ISM Company maintains throughout the Facility Period a valid and current DOC and provide a copy to the Agent; and |
(d) | notify the Lender immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the SMC of that Vessel or of the DOC of the ISM Company; and |
12.5.31 | to comply in relation to that Vessel with the ISPS Code (as the same may be amended from time to time) or any replacement of the ISPS Code and in particular, without limitation, to: |
(a) | procure that that Vessel and the company responsible for that Vessel's compliance with the ISPS Code comply with the ISPS Code; and |
(b) | maintain for that Vessel throughout the Facility Period a valid and current ISSC and provide a copy to the Agent; and |
(c) | notify the Security Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC; and |
12.5.32 | to comply in relation to each Vessel with Annex VI (as the same may be amended from time to time) or any replacement of Annex VI and in particular, without limitation, to: |
(a) | procure that that Vessel's master and crew are familiar with, and that that Vessel complies with, Annex VI; and |
(b) | maintain for that Vessel throughout the Facility Period a valid and current IAPPC and provide a copy to the Agent; and |
(c) | notify the Security Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the IAPPC. |
12.5.33 | to obtain and retain, if and for so long as any Vessel trades in the United States of America and Exclusive Economic Zone (as defined in the Act), a valid Certificate of Financial Responsibility for that Vessel under that Act and to provide the Security Agent (if requested) with evidence of that Certificate, and to comply strictly with the requirements of that Act. |
12.5.34 | to use each Vessel during the Facility Period only for civil merchant trading. |
13 | Events of Default |
13.1 | Events of Default Each of the events or circumstances set out in this Clause 13.1 is an Event of Default. |
13.1.1 | Non-payment A Security Party does not pay on the due date any amount payable by it under a Finance Document to which it is a party at the place at and in the currency in which it is expressed to be payable unless its failure to pay is caused by a technical or an administrative error (which is not caused by and is beyond the control of that Security Party) and payment is made within three (3) Business Days of the due date. |
13.1.2 | Other obligations A Security Party or any other person (except a Finance Party) does not comply with any provision of any of the Relevant Documents to which that Security Party or person is a party (other than as referred to in Clause 13.1.1 (Non-payment)) which are deemed to be material at the sole determination of the Lenders or otherwise in accordance with Clause 15.4 (Limitation on authority) (as the case may be). |
13.1.3 | Misrepresentation Any representation, warranty or statement made or deemed to be repeated by a Security Party in any Finance Document or any other document delivered by or on behalf of a Security Party under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be repeated. |
13.1.4 | Cross default Any Financial Indebtedness of a Security Party other than the Borrower and, in respect of the Borrower, any Financial Indebtedness in excess of five million Dollars ($5,000,000): |
(a) | is not paid when due or within any originally applicable grace period; or |
(b) | is declared to be, or otherwise becomes, due and payable before its specified maturity as a result of an event of default (however described); or |
(c) | is capable of being declared by a creditor to be due and payable before its specified maturity as a result of such an event of default. |
13.1.5 | Insolvency |
(a) | A Security Party is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its Financial Indebtedness. |
(b) | The value of the assets of a Security Party is less than its liabilities (taking into account contingent and prospective liabilities). |
(c) | A moratorium is declared in respect of any Financial Indebtedness of a Security Party. |
13.1.6 | Insolvency proceedings Any corporate action, legal proceedings or other procedure or step is taken for: |
(a) | the suspension of payments, a moratorium of any Financial Indebtedness, winding-up, dissolution, administration, bankruptcy or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of a Security Party; |
(b) | a composition, compromise, assignment or arrangement with any creditor of a Security Party; |
(c) | the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, or trustee or other similar officer in respect of any Security Party or any of its assets; or |
(d) | enforcement of any Encumbrance over any assets of a Security Party, |
13.1.7 | Creditors' process Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a Security Party. |
13.1.8 | Change in ownership or control of the Collateral Owners The Borrower ceases at any time for any reason to own or control, directly or indirectly, one hundred per cent (100%) of the capital stock or other equity interests of a Collateral Owner. |
13.1.9 | Repudiation A Security Party or any other person (except a Finance Party) repudiates any of the Relevant Documents to which that Security Party or person is a party or evidences an intention to do so. |
13.1.10 | Impossibility or illegality Any event occurs which would, or would with the passage of time, render performance of any of the Relevant Documents by a Security Party or any other party to any such document impossible, unlawful or unenforceable by a Finance Party or a Security Party. |
13.1.11 | Conditions subsequent Any of the conditions referred to in Clause 3.5 (Conditions subsequent) is not satisfied within the time reasonably required by the Agent. |
13.1.12 | Revocation or modification of authorisation Any consent, licence, approval, authorisation, filing, registration or other requirement of any governmental, judicial or other public body or authority which is now, or which at any time during the Facility Period becomes, necessary to enable a Security Party or any other person (except a Finance Party) to comply with any of its obligations under any of the Relevant Documents is not obtained, |
13.1.13 | Curtailment of business A Security Party ceases, or threatens to cease, to carry on all or a substantial part of its business or, as a result of intervention by or under the authority of any government, the business of a Security Party is wholly or partially curtailed or suspended, or all or a substantial part of the assets or undertaking of a Security Party is seized, nationalised, expropriated or compulsorily acquired. |
13.1.14 | Reduction of capital a Security Party reduces its authorised or issued or subscribed capital. |
13.1.15 | Loss of Vessel A Vessel suffers a Total Loss or is otherwise destroyed, abandoned, confiscated, forfeited or condemned as prize, or a similar event occurs in relation to any other vessel which may from time to time be mortgaged to the Security Agent as security for the payment of all or any part of the Indebtedness, except that a Total Loss, or event similar to a Total Loss in relation to any other vessel, shall not be an Event of Default if: |
(a) | that Vessel or other vessel is insured in accordance with the Security Documents; and |
(b) | no insurer has refused to meet or has disputed the claim for Total Loss and it is not apparent to the Agent in its discretion that any such refusal or dispute is likely to occur; and |
(c) | the Loan is prepaid in accordance with Clause 6.3 (Mandatory prepayment on sale or Total Loss) or payment of all insurance proceeds in respect of the Total Loss is made in full to the Security Agent within one hundred and twenty (120) days of the occurrence of the casualty giving rise to the Total Loss in question or such longer period as the Agent may in its discretion agree; or |
(d) | that Vessel is replaced by a Replacement Vessel pursuant to Clause 6.4 (Replacement of Vessels). |
13.1.16 | Challenge to registration The registration of a Vessel or a Mortgage is contested or becomes void or voidable or liable to cancellation or termination, or the validity or priority of a Mortgage is contested. |
13.1.17 | War The country of registration of a Vessel becomes involved in war (whether or not declared) or civil war or is occupied by any other power and the Agent in its discretion considers that, as a result, the security conferred by any of the Security Documents is materially prejudiced. |
13.1.18 | Master Agreement termination A notice is given by a Swap Provider under section 6(a) of the Master Agreement, or by any person under section 6(b)(iv) of the Master Agreement, in either case designating an Early Termination Date for the purpose of the Master Agreement, or the Master Agreement is ,without that Swap Provider's prior written consent for any |
13.1.19 | Notice of termination A Collateral Owner gives notice to the Security Agent to determine its obligations under the relevant Guarantee. |
13.1.20 | Material adverse change Any event or series of events occurs which, in the opinion of the Agent, is likely to have a materially adverse effect on the business, assets, financial condition or credit worthiness of a Security Party. |
13.1.21 | Breach of financial covenants The Borrower or any Collateral Owner does not comply with the relevant provisions in Clause 12.2 ( Financial Covenants ). |
13.2 | Acceleration If an Event of Default is continuing the Agent may by notice to the Borrower cancel any part of the Maximum Loan Amount not then advanced and: |
13.2.1 | declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents are immediately due and payable, whereupon they shall become immediately due and payable; and/or |
13.2.2 | declare that the Loan is payable on demand, whereupon it shall immediately become payable on demand by the Agent. |
14 | Assignment and Sub-Participation |
14.1 | Lenders' rights A Lender may, with the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed and which shall be deemed to have been given by the Borrower if no response is received by the Agent within five (5) Business Days of that Lender's request) assign any of its rights under this Agreement or transfer by novation any of its rights and obligations under this Agreement to any bank or financial institution or (for the purpose of a securitisation of that Lender's rights or obligations under the Finance Documents or a similar transaction of broadly equivalent economic effect) to any special purpose vehicle, and may grant sub-participations in all or any part of its Commitment, provided however , that no such consent is required if an Event of Default has occurred which is continuing or in case of an assignment, transfer by novation or sub-participation to that Lender's parent company or to a subsidiary of that Lender's parent company or to another Lender. |
14.2 | Borrower's co-operation The Borrower will co-operate fully with a Lender in connection with any assignment, transfer or sub-participation by that Lender; will execute and procure the execution of such documents as that Lender may require in that connection; and irrevocably authorise any Finance Party to disclose to any proposed assignee, transferee or sub-participant (whether before or after any assignment, transfer or sub-participation and whether or not any assignment, transfer or sub-participation shall take place) all information relating to the Security Parties, the Loan, the Relevant Documents and the Vessels which any Finance Party may in its discretion consider necessary or desirable. |
14.3 | Rights of assignee Any assignee or transferee of a Lender shall (unless limited by the express terms of the assignment or transfer) take the full benefit of every provision of the Finance Documents benefitting that Lender PROVIDED THAT if, as a result of circumstances existing at the date of the assignment, the Borrower would be obliged to make a payment to the assignee or transfer under Clause 8.5 ( Increased costs ) or Clause 17.3 ( Grossing-up ), then the assignee or the transferee shall only be entitled to receive payment under that Clause to the same extent as that Lender would have been if the assignment or transfer had not taken place. |
14.4 | Transfer Certificates If a Lender wishes to transfer any of its rights and obligations under or pursuant to this Agreement, it may do so by delivering to the Agent a duly completed Transfer Certificate, in which event on the Transfer Date: |
14.4.1 | to the extent that that Lender seeks to transfer its rights and obligations, the Borrower (on the one hand) and that Lender (on the other) shall be released from all further obligations towards the other; |
14.4.2 | the Borrower (on the one hand) and the transferee (on the other) shall assume obligations towards the other identical to those released pursuant to Clause 14.4.1; and |
14.4.3 | the Agent, each of the Lenders and the transferee shall have the same rights and obligations between themselves as they would have had if the transferee had been an original party to this Agreement as a Lender |
(a) | it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to the transferee; and |
(b) | the transferee has paid to the Agent for its own account a transfer fee of six thousand Dollars ($6,000). |
14.5 | Finance Documents Unless otherwise expressly provided in any Finance Document or otherwise expressly agreed between a Lender and any proposed transferee and notified by that Lender to the Agent on or before the relevant Transfer Date, there shall automatically be assigned to the transferee with any transfer of a Lender's rights and obligations under or pursuant to this Agreement the rights of that Lender under or pursuant to the Finance Documents (other than this Agreement) which relate to the portion of that Lender's rights and obligations transferred by the relevant Transfer Certificate. |
14.6 | No assignment or transfer by the Borrower The Borrower may not, without the prior consent of all Lenders, assign any of its rights or transfer any of its rights or obligations under the Finance Documents. |
14.7 | Securitisation A Lender may disclose the size and term of the Loan and the name of each of the Security Parties to any investor or potential investor in a securitisation |
15 | The Agent, the Security Agent and the Lenders |
15.1 | Appointment |
15.1.1 | Each Lender appoints the Agent to act as its agent under and in connection with the Finance Documents and each Lender and the Agent appoints the Security Agent to act as its security agent and trustee for the purpose of the Security Documents. |
15.1.2 | Each Lender authorises the Agent and each Lender and the Agent authorises the Security Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent or the Security Agent (as the case may be) under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
15.1.3 | Each Swap Provider appoints the Security Agent to act as its security agent for the purpose of the Security Documents and authorises the Security Agent to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or in connection with the Security Documents together with any other incidental rights, powers, authorities and discretions. |
15.1.4 | Except where the context otherwise requires, references in this Clause 15 to the " Agent " shall mean the Agent and the Security Agent individually and collectively. |
15.2 | Authority Each Lender irrevocably authorises the Agent (subject to Clauses 15.4 (Limitations on authority) and 15.18 (Instructions)): |
15.2.1 | to execute any Finance Document (other than this Agreement) on its behalf; |
15.2.2 | to collect, receive, release or pay any money on its behalf; |
15.2.3 | acting on the instructions from time to time of the Majority Lenders to give or withhold any waivers, consents or approvals under or pursuant to any Finance Document; and |
15.2.4 | acting on the instructions from time to time of the Majority Lenders to exercise, or refrain from exercising, any rights, powers, authorities or discretions under or pursuant to any Finance Document. |
15.3 | Trust The Security Agent agrees and declares, and each of the other Finance Parties acknowledges, that, subject to the terms and conditions of this Clause 15.3, |
15.3.1 | the Security Agent and any attorney, agent or delegate of the Security Agent may indemnify itself or himself out of the Trust Property against all liabilities, costs, fees, damages, charges, losses and expenses sustained or incurred by it or him in relation to the taking or holding of any of the Trust Property or in connection with the exercise or purported exercise of the rights, trusts, powers and discretions vested in the Security Agent or any other such person by or pursuant to the Security Documents or in respect of anything else done or omitted to be done in any way relating to the Security Documents; |
15.3.2 | the other Finance Parties acknowledge that the Security Agent shall be under no obligation to insure any property nor to require any other person to insure any property and shall not be responsible for any loss which may be suffered by any person as a result of the lack or insufficiency of any insurance; and |
15.3.3 | the Finance Parties agree that the perpetuity period applicable to the trusts declared by this Agreement shall be the period of 125 years from the date of this Agreement. |
15.4 | Limitations on authority Except with the prior written consent of all the Lenders, the Agent shall not be entitled to: |
15.4.1 | release or vary any security given for the Borrower's obligations under this Agreement; nor |
15.4.2 | waive the payment of any sum of money payable by any Security Party under the Finance Documents; nor |
15.4.3 | reduce the Margin; nor |
15.4.4 | change the meaning of the expression " Majority Lenders "; nor |
15.4.5 | exercise, or refrain from exercising, any right, power, authority or discretion, or give or withhold any consent, the exercise or giving of which is, by the terms of this Agreement, expressly reserved to the Lenders; nor |
15.4.6 | extend the due date for the payment of any sum of money payable by any Security Party under any Finance Document; nor |
15.4.7 | take or refrain from taking any step if the effect of such action or inaction may lead to the increase of the obligations of a Lender under any Finance Document; nor |
15.4.8 | agree to change the currency in which any sum is payable under any Finance Document (other than in accordance with the terms of the relevant Finance Document); nor |
15.4.9 | agree to amend Clause 10.8 (General application of moneys); nor |
15.4.10 | agree to amend this Clause 15.4. |
15.5 | Liability Neither the Agent nor any of its directors, officers, employees or agents shall be liable to the Lenders for anything done or omitted to be done by the Agent under or in connection with any of the Relevant Documents unless as a result of the Agent's gross negligence or wilful misconduct. |
15.6 | Acknowledgement Each Lender acknowledges that: |
15.6.1 | it has not relied on any representation made by the Agent or any of the Agent's directors, officers, employees or agents or by any other person acting or purporting to act on behalf of the Agent to induce it to enter into any Finance Document; |
15.6.2 | it has made and will continue to make without reliance on the Agent, and based on such documents and other evidence as it considers appropriate, its own independent investigation of the financial condition and affairs of the Security Parties in connection with the making and continuation of the Loan; |
15.6.3 | it has made its own appraisal of the creditworthiness of the Security Parties; and |
15.6.4 | the Agent shall not have any duty or responsibility at any time to provide it with any credit or other information relating to any Security Party unless that information is received by the Agent pursuant to the express terms of a Finance Document. |
15.7 | Limitations on responsibility The Agent shall have no responsibility to any Security Party or to any Lender on account of: |
15.7.1 | the failure of a Lender or of any Security Party to perform any of its obligations under a Finance Document; nor |
15.7.2 | the financial condition of any Security Party; nor |
15.7.3 | the completeness or accuracy of any statements, representations or warranties made in or pursuant to any Finance Document, or in or pursuant to any document delivered pursuant to or in connection with any Finance Document; nor |
15.7.4 | the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of any Finance Document or of any document executed or delivered pursuant to or in connection with any Finance Document. |
15.8 | The Agent's rights The Agent may: |
15.8.1 | assume that all representations or warranties made or deemed repeated by any Security Party in or pursuant to any Finance Document are true and complete, unless, in its capacity as the Agent, it has acquired actual knowledge to the contrary; |
15.8.2 | assume that no Default has occurred unless, in its capacity as the Agent, it has acquired actual knowledge to the contrary; |
15.8.3 | rely on any document or notice believed by it to be genuine; |
15.8.4 | rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it; |
15.8.5 | rely as to any factual matters which might reasonably be expected to be within the knowledge of any Security Party on a certificate signed by or on behalf of that Security Party; and |
15.8.6 | refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Majority Lenders) and unless and until the Agent has received from the Lenders any payment which the Agent may require on account of, or any security which the Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions. |
15.9 | The Agent's duties The Agent shall: |
15.9.1 | if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of any Finance Document by any Security Party or as to the existence of an Event of Default; and |
15.9.2 | inform the Lenders promptly of any Event of Default of which the Agent has actual knowledge. |
15.10 | No deemed knowledge The Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by any Security Party or actual knowledge of the occurrence of any Default unless a Lender or a Security Party shall have given written notice thereof to the Agent in its capacity as the Agent. Any information acquired by the Agent other than specifically in its capacity as the Agent shall not be deemed to be information acquired by the Agent in its capacity as the Agent. |
15.11 | Other business The Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with a Security Party or with a Security Party's subsidiaries or associated companies or with a Lender as if it were not the Agent. |
15.12 | Indemnity The Lenders shall, promptly on the Agent's request, reimburse the Agent in their respective Proportionate Shares, for, and keep the Agent fully indemnified in respect of all liabilities, damages, costs and claims sustained or incurred by the Agent in connection with the Finance Documents (other than the Master Agreement) or the performance of its duties and obligations, or the exercise of its rights, powers, discretions or remedies under or pursuant to any Finance Document (other than the Master Agreement) to the extent not paid by the Security Parties and not arising solely from the Agent's gross negligence or wilful misconduct. |
15.13 | Employment of agents In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to the Finance Documents, the Agent shall be entitled to employ and pay agents to do anything which the Agent is empowered to do under or pursuant to the Finance Documents (including the receipt of money and documents and the payment of money) and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by the Agent in good faith to be competent to give such opinion, advice or information. |
15.14 | Distribution of payments The Agent shall pay promptly to the order of each Lender that Lender's Proportionate Share of every sum of money received by the Agent pursuant to the Finance Documents (with the exception of any amounts payable pursuant to Clause 9 (Fees) and/or any Fee Letter and any amounts which, by the terms of the Finance Documents, are paid to the Agent for the account of the Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Agent on trust absolutely for that Lender. |
15.15 | Reimbursement The Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Clause 15.14 (Distribution of payments) before it has itself received payment of that amount, that Lender will, on demand by the Agent, refund to the Agent an amount equal to the sum so paid, together with an amount sufficient to reimburse the Agent for any interest which the Agent may certify that it has been required to pay on money borrowed to fund the sum in question during the period beginning on the date of payment and ending on the date on which the Agent receives reimbursement. |
15.16 | Redistribution of payments Unless otherwise agreed between the Lenders and the Agent, if at any time a Lender receives or recovers by way of set‑off, the exercise |
15.16.1 | that Lender shall promptly notify the Agent (which shall promptly notify each other Lender); |
15.16.2 | that Lender shall pay to the Agent an amount equal to the Excess Amount within ten (10) days of its receipt or recovery of the Excess Amount; and |
15.16.3 | the Agent shall treat that payment as if it were a payment by the Security Party in question on account of the sum due from that Security Party to the Lenders and shall account to the Lenders in respect of the Excess Amount in accordance with the provisions of this Clause 15.16. |
15.17 | Rescission of Excess Amount If all or any part of any Excess Amount is rescinded or must otherwise be restored to any Security Party or to any other third party, the Lenders which have received any part of that Excess Amount by way of distribution from the Agent pursuant to Clause 15.16 ( Redistribution of payments ) shall repay to the Agent for the account of the Lender which originally received or recovered the Excess Amount, the amount which shall be necessary to ensure that the Lenders share rateably in accordance with their Proportionate Shares in the amount of the receipt or payment retained, together with interest on that amount at a rate equivalent to that (if any) paid by the Lender receiving or recovering the Excess Amount to the person to whom that Lender is liable to make payment in respect of such amount, and Clause 15.16.3 (Redistribution of payments ) shall apply only to the retained amount. |
15.18 | Instructions Where the Agent is authorised or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Majority Lenders each of the Lenders shall provide the Agent with instructions within three (3) Business Days of the Agent's request. If a Lender does not provide the Agent with instructions within that period, that Lender shall be bound by the decision of the Agent. Nothing in this Clause 15.18 shall limit the right of the Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Majority Lenders if the Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with the Finance Documents. In that event, the Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Agent pursuant to this Clause 15.18. |
15.19 | Payments All amounts payable to a Lender under this Clause 15 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Agent. |
15.20 | "Know your customer" checks Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. |
15.21 | Resignation Subject to a successor being appointed in accordance with this Clause 15.21, the Agent may resign as agent and/or security agent at any time without assigning any reason by giving to the Borrower and the Lenders notice of its intention to do so, in which event the following shall apply: |
15.21.1 | the Lenders may within thirty (30) days after the date of the Agent's notice appoint a successor to act as agent and/or security agent or, if they fail to do so, the Agent may appoint any other bank or financial institution as its successor; |
15.21.2 | the resignation of the Agent shall take effect simultaneously with the appointment of its successor on written notice of that appointment being given to the Borrower and the Lenders; |
15.21.3 | the Agent shall thereupon be discharged from all further obligations as agent and/or security agent but shall remain entitled to the benefit of the provisions of this Clause 15; and |
15.21.4 | the Agent's successor and each of the other parties to this Agreement shall have the same rights and obligations amongst themselves as they would have had if that successor had been a party to this Agreement. |
15.22 | Replacement of the Agent |
15.22.1 | After consultation with the Borrower, the Majority Lenders may, by giving thirty (30) days' notice to the Agent replace the Agent by appointing a successor Agent; |
15.22.2 | The retiring Agent shall make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents; |
15.22.3 | The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 15 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date); |
15.22.4 | Any successor Agent and each of the other parties to this Agreement shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original party to this Agreement. |
15.23 | No fiduciary relationship Except as provided in Clauses 15.3 ( Trust ) and 15.14 (Distribution of payments), the Agent shall not have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in any Finance Document shall constitute a partnership between any two or more Lenders or between the Agent and any other person. |
16 | Set-Off |
16.1 | Set-off A Finance Party may set off any matured obligation due from the Borrower under any Finance Document (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to the Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, that Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. |
16.2 | Master Agreement rights The rights conferred on the Swap Providers by this Clause 16 shall be in addition to, and without prejudice to or limitation of, the rights of netting and set off conferred on the Swap Providers by the Master Agreement. |
17 | Payments |
17.1 | Payments Each amount payable by the Borrower under a Finance Document (other than the Master Agreement) shall be paid to such account at such bank as the Agent may from time to time direct to the Borrower in the Currency of Account and in such funds as are customary at the time for settlement of transactions in the relevant currency in the place of payment. Payment shall be deemed to have been received by the Agent on the date on which the Agent receives authenticated advice of receipt, unless that advice is received by the Agent on a day other than a Business Day or at a time of day (whether on a Business Day or not) when the Agent in its discretion considers that it is impossible or impracticable for the Agent to utilise the amount received for value that same day, in which event the payment in question shall be deemed to have been received by the Agent on the Business Day next following the date of receipt of advice by the Agent. |
17.2 | No deductions or withholdings Each payment (whether of principal or interest or otherwise) to be made by the Borrower under a Finance Document shall, subject only to Clause 17.3 ( Grossing-up ), be made free and clear of and without deduction for or on account of any Taxes or other deductions, withholdings, restrictions, conditions or counterclaims of any nature. |
17.3 | Grossing-up If at any time any law requires (or is interpreted to require) the Borrower to make any deduction or withholding from any payment, or to change the rate or manner in which any required deduction or withholding is made, the Borrower will promptly notify the Agent and, simultaneously with that payment, will pay to the Agent whatever additional amount (after taking into account any additional Taxes on, or deductions or withholdings from, or restrictions or conditions on, that additional amount) is necessary to ensure that, after making the deduction or withholding, the |
17.4 | Evidence of deductions If at any time the Borrower is required by law to make any deduction or withholding from any payment to be made by it under a Finance Document, the Borrower will pay the amount required to be deducted or withheld to the relevant authority within the time allowed under the applicable law and will, no later than thirty (30) days after making that payment, deliver to the Agent an original receipt issued by the relevant authority, or other evidence acceptable to the Agent, evidencing the payment to that authority of all amounts required to be deducted or withheld. |
17.5 | Adjustment of due dates If any payment or transfer of funds to be made under a Finance Document, other than a payment of interest on the Loan or a payment under a Master Agreement, shall be due on a day which is not a Business Day, that payment shall be made on the next succeeding Business Day (unless the next succeeding Business Day falls in the next calendar month in which event the payment shall be made on the next preceding Business Day). Any such variation of time shall be taken into account in computing any interest in respect of that payment. |
17.6 | Control account The Agent and any Swap Provider shall open and maintain on its books a control account in the name of the Borrower showing the advance of the Loan and the computation and payment of interest and all other sums due under this Agreement and the Master Agreement. The Borrower's obligations to repay the Loan and to pay interest and all other sums due under this Agreement and the Master Agreement shall be evidenced by the entries from time to time made in the control account opened and maintained under this Clause 17.6 and those entries will, in the absence of manifest error, be conclusive and binding. |
17.7 | Clawback The Agent shall have no liability to pay any sum to the Borrower until it has itself received payment of that sum. If, however, the Agent does pay any sum to the Borrower on account of any amount prospectively due to the Borrower pursuant to Clause 4 (Advance) before it has itself received payment of that amount, the Borrower will, on demand by the Agent, refund to the Agent an amount equal to the sum so paid, together with an amount sufficient to reimburse the Agent for any interest which the Agent may certify that it has been required to pay on money borrowed to fund the sum in question during the period beginning on the date of payment and ending on the date on which the Agent receives reimbursement. |
18 | Notices |
18.1 | Communications in writing Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter. |
18.2 | Addresses The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each party to this Agreement for any communication or document to be made or delivered under or in connection with this Agreement are: |
18.2.1 | in the case of the Borrower, Genco Shipping & Trading Limited, 299 Park Avenue, 12 th Floor, New York, New York 10171 (fax no: +1 646 443 8551) marked for the attention of Joe Adamo; |
18.2.2 | in the case of each Lender, those appearing opposite its name in Schedule 1 (: The Lenders and the Commitments); |
18.2.3 | in the case of the Agent, 2, Bvd Konrad Adenauer, L-1115 Luxembourg (fax no: +352 42122-95771) marked for the attention of Franz-Josef Ewerhardy / Sven Walther; and |
18.2.4 | in the case of the Security Agent, Ludwig‑Erhard‑Str. 1, 20459 Hamburg, Germany (fax no: +49 40 3701 4550 and email dirk.niedereichholz@db.com) marked for the attention of Dirk Niedereichholz; |
18.3 | Delivery Any communication or document made or delivered by one party to this Agreement to another under or in connection this Agreement will only be effective: |
18.3.1 | if by way of fax, when received in legible form; or |
18.3.2 | if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; |
18.4 | Notification of address and fax number Promptly upon receipt of notification of an address, fax number or change of address, pursuant to Clause 18.2 (Addresses) or changing its own address or fax number, the Agent shall notify the other parties to this Agreement. |
18.5 | Electronic communication Any communication to be made between the parties to this Agreement under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the parties to this Agreement: |
18.5.1 | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
18.5.2 | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
18.5.3 | notify each other of any change to their address or any other such information supplied by them. |
18.6 | English language Any notice given under or in connection with this Agreement must be in English. All other documents provided under or in connection with this Agreement must be: |
18.6.1 | in English; or |
18.6.2 | if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
19 | Partial Invalidity |
20 | Remedies and Waivers |
21 | Miscellaneous |
21.1 | No oral variations No variation or amendment of a Finance Document shall be valid unless in writing and signed on behalf of all the relevant Finance Parties and the relevant Security Parties. |
21.2 | Further assurance If any provision of a Finance Document shall be invalid or unenforceable in whole or in part by reason of any present or future law or any decision of any court, or if the documents at any time held by or on behalf of the Finance Parties or any of them are considered by the Lenders for any reason insufficient to carry out the terms of this Agreement, then from time to time the Borrower will promptly, on demand by the Agent, execute or procure the execution of such further documents as in the opinion of the Lenders are necessary to provide adequate security for the repayment of the Indebtedness. |
21.3 | Rescission of payments etc. Any discharge, release or reassignment by a Finance Party of any of the security constituted by, or any of the obligations of a Security Party contained in, a Finance Document shall be (and be deemed always to have |
21.4 | Certificates Any certificate or statement signed by an authorised signatory of the Agent purporting to show the amount of the Indebtedness (or any part of the Indebtedness) or any other amount referred to in any Finance Document shall, save for manifest error or on any question of law, be conclusive evidence as against the Borrower of that amount. |
21.5 | Counterparts This Agreement may be executed in any number of counterparts each of which shall be original but which shall together constitute the same instrument. |
21.6 | Contracts (Rights of Third Parties) Act 1999 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. |
22 | Law and Jurisdiction |
22.1 | Governing law This Agreement and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and interpreted in accordance with English law. |
22.2 | Jurisdiction For the exclusive benefit of the Finance Parties, the parties to this Agreement irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any dispute (a) arising from or in connection with this Agreement or (b) relating to any non-contractual obligations arising from or in connection with this Agreement and that any proceedings may be brought in those courts. |
22.3 | Alternative jurisdictions Nothing contained in this Clause 22 shall limit the right of the Finance Parties to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not. |
22.4 | Waiver of objections The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Clause 22, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be conclusive and binding on it and may be enforced in the courts of any other jurisdiction. |
22.5 | Service of process Without prejudice to any other mode of service allowed under any relevant law, the Borrower: |
22.5.1 | irrevocably appoints WFW Legal Services Limited of 15 Appold Street, London EC2A 2HB, England as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and |
22.5.2 | agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned. |
Deutsche Bank AG Filiale Deutschlandgeschäft
Adolphsplatz 7, 20457 Hamburg,
Germany
Fax: +49 40 3701 4550
Attention: Dirk Niedereichholz
|
$51,000,000
|
DVB Bank SE
Platz der Republik 6
D-60325 Frankfurt am Main
Germany
Fax: +49 69 9750 4875
Attention: Shipping Loans Administration Department
|
$51,000,000
|
Skandinaviska Enskilda Banken AB (publ)
Kungsträdgårdsgatan 8
106 40 Stockholm
Sweden
Fax: +46 8 678 02 06
Attention: Arne Juell-Skielse
|
$51,000,000
|
BNP Paribas
16 rue du Hanovre
75002 Paris
France
E-mail : tgmo.shipping@bnpparibas.com
Fax : +33 1 42 98 43 55
Attention : Transportation Group Middle Office
|
$50,000,000
|
Crédit Agricole Corporate and Investment Bank
9, quai du President Paul Doumer
92920 Paris la Defense
France
Fax: +33 1 41 89 29 87
Attention: Shipping Department
with a copy to
Crédit Agricole Corporate and Investment Bank, London
Ship Finance Department
5 Appold Street
|
$50,000,000
|
1 | Security Parties |
(a) | Constitutional documents Copies of the constitutional documents of each Security Party together with such other evidence as the Agent may reasonably require that each Security Party is duly incorporated in its country of incorporation and remains in existence with power to enter into, and perform its obligations under, the Relevant Documents to which it is or is to become a party. |
(b) | Certificates of good standing The certificate of good standing in respect of each Security Party (if such a certificate can be obtained). |
(c) | Board resolutions A copy of a resolution of the board of directors or its equivalent of each Security Party: |
(i) | approving the terms of, and the transactions contemplated by, the Relevant Documents to which it is a party and resolving that it execute those Relevant Documents; and |
(ii) | authorising a specified person or persons to execute those Relevant Documents (and all documents and notices to be signed and/or despatched under those documents) on its behalf. |
(d) | Shareholder resolutions A copy of a resolution signed by all the holders of the issued shares in each Collateral Owner, approving the terms of, and the transactions contemplated by, the Relevant Documents to which that Collateral Owner is a party. |
(e) | Officer's certificates A certificate of a duly authorised officer of each Security Party certifying that that Security Party is existing in good standing in the jurisdiction of its incorporation and that each copy document relating to it specified in this Part I of Schedule 1 (: The Lenders and the Commitments) is correct, complete and in full force and effect and setting out the names and titles of the directors, officers and shareholders of that Security Party and the proportion of shares held by each shareholder, and an incumbency certificate reflecting the name and signature of each officer authorized to execute the Relevant Documents to which that Security Party is a party and that no proceedings are pending or contemplated for the dissolution of that Security Party. |
(f) | Evidence of registration Where such registration is required or permitted under the laws of the relevant jurisdiction, evidence that the names of the directors, officers and shareholders of each Security Party are duly registered in the companies registry or other registry in the country of incorporation or formation (as the case may be) of that Security Party. |
(g) | Powers of attorney The notarially attested and legalised power of attorney of each Security Party under which any documents are to be executed or transactions undertaken by that Security Party. |
2 | Security and related documents |
(h) | Vessel documents Copies, certified as true, accurate and complete by a director or the secretary of the Borrower, of, in respect of the Vessel specified in the relevant Drawdown Notice: |
(i) | the MOA; |
(ii) | such documents as the Agent may reasonably require to evidence the nomination of the Collateral Owner as purchaser of the Vessel pursuant to the MOA; |
(iii) | any charterparty or other contract of employment of the Vessel which will be in force on the relevant Drawdown Date; |
(iv) | the Management Agreement; |
(i) | Survey report A report by a surveyor instructed by the Agent to inspect Vessel E and Vessel G confirming that the condition of the Vessel is in all respects acceptable to the Lenders. |
(j) | Valuation Two (2) valuations of the Vessel from two (2) Approved Brokers determined in accordance with the definition of "Fair Market Value". |
(k) | Managers' confirmation In respect of the Vessel specified in the relevant Drawdown Notice, the written confirmation of: |
(i) | the Technical Managers that, throughout the period in which they are technical managers, they will (a) not, without the prior written consent of the Agent (such consent not to be unreasonably withheld by the Agent), sub-contract or delegate the technical management of the Vessel to any third party and (ii) following the occurrence of an Event of Default, all claims of the Technical Managers against the relevant Collateral Owner, shall be subordinated to the claims of the Finance Parties under the Finance Documents ; and |
(ii) | the Commercial Managers that, throughout the Facility Period unless otherwise agreed by the Agent, they will remain the commercial managers of the Vessel and that following the occurrence of an Event of Default, all claims of the Commercial Managers against the relevant Collateral Owner shall be subordinated to the claims of the Finance Parties under the Finance Documents. |
(l) | No disputes The written confirmation of the Borrower that there is no dispute and no pending litigation under any of the Relevant Documents as between the parties to any such document. |
(m) | Mandates and The Account Holder's confirmation Duly signed forms of mandate and the written confirmation of the Account Holder that the Accounts have been opened with the Account Holder and to its actual knowledge are free from Encumbrances and rights of set off other than as created by or pursuant to the Security Documents, and/or other evidence of the opening of the Accounts, as the Agent may require. |
3 | Other documents and evidence |
(a) | Drawdown Notice A duly completed Drawdown Notice. |
(b) | Process agent Evidence that any process agent referred to in Clause 22.5 (Service of process) and any process agent appointed under any other Finance Document has accepted its appointment. |
(c) | Other authorisations A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Relevant Documents or for the validity and enforceability of any of the Relevant Documents. |
(d) | Financial statements Copies of the Original Financial Statements of the Borrower. |
(e) | Fees Evidence that the fees, costs and expenses then due from the Borrower under Clause 8 (Indemnities) and Clause 9 (Fees) have been paid or will be paid by the relevant Drawdown Date. |
(f) | "Know your customer" documents Such documentation and other evidence as is reasonably requested by the Agent in order for the Lenders to comply with all necessary "know your customer" or similar identification procedures in relation to the transactions contemplated in the Finance Documents. |
(g) | Ultimate beneficiary of the Collateral Owners Evidence that the Borrower is the ultimate legal and beneficial owner of the Collateral Owners. |
(h) | Public debt Evidence that the Borrower has issued public debt and equity securities with minimum proceeds of one hundred and fifty million Dollars ($150,000,000) and in the case of public debt securities, that such securities have a maturity date falling after the Final Maturity Date. |
4 | Security Parties |
(a) | Bringdown Officer's certificates If requested by the Agent, a certificate of a duly authorised officer of each Security Party confirming that none of the documents and evidence delivered to the Agent under Schedule 2 (: Conditions Precedent and Subsequent), Part I (Conditions Precedent to a Drawdown Notice) paragraph 1 has been amended, modified or revoked in any way since its delivery to the Agent. |
5 | Security and related documents |
(a) | Vessel documents in respect of each Vessel, photocopies, certified as true, accurate and complete by a director or the secretary of the Borrower or the relevant Collateral Owner, of: |
(i) | the bill of sale transferring title in the Vessel to the Collateral Owner free of all encumbrances, maritime liens or other debts; |
(ii) | the protocol of delivery and acceptance evidencing the unconditional physical delivery of the Vessel by the Seller to the Collateral Owner pursuant to the MOA; |
(b) | Evidence of Seller's title for Vessel not yet delivered If the Vessel has not already been delivered to the relevant Collateral Owner at the time of the Drawing, a copy of the certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of the Vessel's current flag confirming that the Vessel is owned by the relevant Seller and free of registered Encumbrances and an undertaking by the Seller to delete the Vessel from its current flag. |
(c) | Confirmation of class A copy, (certified as true, accurate and complete by a director or the secretary of the Borrower), of the certificate of Confirmation of Class for hull and machinery confirming that the Vessel is classed with the highest class applicable to vessels of her type with an Approved Classification Society free of overdue recommendations affecting class other than those approved by the Agent. |
(d) | Evidence of Collateral Owner's title for Vessel not yet delivered If the Vessel has not already been delivered to the relevant Collateral Owner at the time of the Drawing, evidence that on the Drawdown Date (i) the Vessel will be at least provisionally registered under the Marshall Islands' flag in the ownership of the Collateral Owner and (ii) the Mortgage will be capable of being registered against the Vessel with first priority. |
(e) | Evidence of Collateral Owner's title for Vessels refinanced If the Vessel has already been delivered to the relevant Collateral Owner at the time of the Drawing, a certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of the Marshall Islands' flag confirming that (a) the Vessel is permanently |
(f) | Evidence of insurance Evidence that the Vessel will be insured in the manner required by the Security Documents and that letters of undertaking will be issued in the manner required by the Security Documents, together with (if required by the Agent) the written approval of the Insurances by an insurance adviser appointed by the Agent. |
(g) | Security Documents The Mortgage and the Assignments in respect of the Vessel, the Guarantee, the Account Pledge, the Deposit Account Control Agreement, the Share Pledges, the Master Agreement Charge and any other Credit Support Documents, together with all other documents required by any of them, including, without limitation, (i) all notices of assignment and/or charge and, (ii) to the extent the Borrower or the Collateral Owners can procure same, evidence that those notices will be duly acknowledged by the recipients, and (iii) share certificates and UCC Filings, if necessary, to perfect the security interests under the applicable Security Documents. |
(h) | Other Relevant Documents Copies of each of the Relevant Documents not otherwise comprised in the documents listed in this Part II of Schedule 1. |
(i) | Equity contribution Evidence of full payment to the relevant Seller of any part of the purchase price of the Vessel under the MOA which is payable on or before the relevant Drawdown Date and which is not being financed by the Loan. |
6 | Legal opinions |
(a) | If a Security Party is incorporated or organised in a jurisdiction other than England and Wales or if any Finance Document is governed by the laws of a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Lenders in each relevant jurisdiction, substantially in the form or forms provided to the Agent prior to signing this Agreement or confirmation satisfactory to the Agent that such an opinion will be given. |
1 | Evidence of Collateral Owner's title If the Vessel has not already been delivered to the relevant Collateral Owner at the time of the Drawing, a Certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of the Marshall Island's flag confirming that (a) the Vessel is permanently registered under that flag in the ownership of the Collateral Owner, (b) the Mortgage has been registered with first priority against the Vessel and (c) there are no further Encumbrances registered against the Vessel. |
2 | Deletion by Seller Evidence that the Vessel has been deleted from its previous flag. |
3 | Letters of undertaking Evidence that the Vessel is insured in the manner required by the Security Documents and original letters of undertaking in respect of the Insurances as required by the Security Documents together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Finance Parties. |
4 | Acknowledgements of notices To the extent the Borrower or the Collateral Owners can procure same, acknowledgements of all notices of assignment and/or charge given pursuant to any Security Documents received by the Agent pursuant to Part II of this Schedule 2 (: Conditions Precedent and Subsequent). |
5 | Legal opinions Such of the legal opinions specified in Part II of this Schedule 2 (: Conditions Precedent and Subsequent) as have not already been provided to the Agent. |
6 | Companies Act registrations Evidence that the Security Documents received by the Agent pursuant to Part II of this Schedule 2 (: Conditions Precedent and Subsequent) have been, if necessary, filed, recorded or enrolled with any court or other authority in the jurisdiction of incorporation or formation (as the case may be) of each relevant Security Party within any applicable statutory time limit. |
7 | Insurance opinion Within ninety (90) days of the Drawdown Date, an insurance opinion in respect of the Vessel's insurance policy cover to be made by an independent broker at the Borrower's expense to the satisfaction of the Security Agent. |
8 | Mortgagee's Insurances Fees Payment to the Security Agent of all fees which are owed by the Borrower or the Collateral Owners pursuant to the terms of the Finance Documents in relation to inspections, valuations, legal fees and premiums for Mortgagee's Insurances (MII and MAP). |
9 | Master receipt The master's receipt for the Mortgage. |
1 | The Mandatory Cost is an addition to the interest rate to compensate the Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank. |
2 | On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the " Additional Cost Rate ") for each Lender in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the Loan) and will be expressed as a percentage rate per annum. |
3 | The Additional Cost Rate for any Lender lending from an office in the euro-zone will be the percentage notified by that Lender to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in the Loan) of complying with the minimum reserve requirements of the European Central Bank as a result of participating in the Loan from that office. |
4 | The Additional Cost Rate for any Lender lending from an office in the United Kingdom will be calculated by the Agent as follows: |
(a) | where the Loan is denominated in sterling: |
(b) | where the Loan is denominated in any currency other than sterling: |
B | is the percentage of eligible liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements; |
Y | is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an overdue amount, the additional rate of interest specified in Clause 7.9 ( Default interest )) payable for the relevant Interest Period on the Loan; |
S | is the percentage (if any) of eligible liabilities which that Lender is required from time to time to maintain as interest bearing special deposits with the Bank of England; |
Z | is the interest rate per annum payable by the Bank of England to that Lender on special deposits; and |
F | is the charge payable by that Lender to the Financial Services Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations or the equivalent provisions in any replacement regulations (with, for this purpose, the figure for the minimum amount in paragraph 2.02b or such equivalent provision deemed to be zero), expressed in pounds per £1 million of the fee base of that Lender. |
5 | For the purpose of this Schedule: |
(a) | " eligible liabilities " and " special deposits " have the meanings given to them at the time of application of the formula by the Bank of England; |
(b) | " fee base " has the meaning given to it in the Fees Regulations; |
(c) | " Fees Regulations " means the regulations governing periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits. |
6 | In the application of the formula B, Y, S and Z are included in the formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated as 0.5. x 15. Each rate calculated in accordance with the formula is, if necessary, rounded upward to four decimal places. |
7 | If a Lender does not supply the information required by the Agent to determine its Additional Cost Rate when requested to do so, the applicable Mandatory Cost shall be determined on the basis of the information supplied by the remaining Lenders. |
8 | If a change in circumstances has rendered, or will render, the formula inappropriate, the Agent shall notify the Borrower of the manner in which the Mandatory Cost will subsequently be calculated. The manner of calculation so notified by the Agent shall, in the absence of manifest error, be binding on the Borrower. |
To: | Deutsche Bank Luxembourg S.A. |
From: | Genco Shipping & Trading Limited |
To: | Deutsche Bank Luxembourg S.A. |
1 | Terms defined in the Loan Agreement shall, unless otherwise expressly indicated, have the same meaning when used in this certificate. The terms " Transferor " and " Transferee " are defined in the schedule to this certificate. |
2 | The Transferor: |
2.1 | confirms that the details in the Schedule under the heading " Transferor's Commitment " accurately summarise its Commitment; and |
2.2 | requests the Transferee to accept by way of novation the transfer to the Transferee of the amount of the Transferor's Commitment specified in the Schedule by counter-signing and delivering this certificate to the Agent at its address for communications specified in the Loan Agreement. |
3 | The Transferee requests the Agent to accept this certificate as being delivered to the Agent pursuant to and for the purposes of clause 14.4 of the Loan Agreement so as to take effect in accordance with the terms of that clause on the Transfer Date specified in the Schedule. |
4 | The Agent confirms its acceptance of this certificate for the purposes of clause 14.4 of the Loan Agreement. |
5 | The Transferee confirms that: |
5.1 | it has received a copy of the Loan Agreement together with all other information which it has required in connection with this transaction; |
5.2 | it has not relied and will not in the future rely on the Transferor or any other party to the Loan Agreement to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information; and |
5.3 | it has not relied and will not in the future rely on the Transferor or any other party to the Loan Agreement to keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of any Security Party. |
6 | Execution of this certificate by the Transferee constitutes its representation and warranty to the Transferor and to all other parties to the Loan Agreement that it has the power to become a party to the Loan Agreement as a Lender on the terms of the |
7 | The Transferee undertakes with the Transferor and each of the other parties to the Loan Agreement that it will perform in accordance with their terms all those obligations which by the terms of the Loan Agreement will be assumed by it after delivery of this certificate to the Agent and the satisfaction of any conditions subject to which this certificate is expressed to take effect. |
8 | The Transferor makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any document relating to any Finance Document, and assumes no responsibility for the financial condition of any Finance Party or for the performance and observance by any Security Party of any of its obligations under any Finance Document or any document relating to any Finance Document and any conditions and warranties implied by law are expressly excluded. |
9 | The Transferee acknowledges that nothing in this certificate or in the Loan Agreement shall oblige the Transferor to: |
9.1 | accept a re-transfer from the Transferee of the whole or any part of the rights, benefits and/or obligations transferred pursuant to this certificate; or |
9.2 | support any losses directly or indirectly sustained or incurred by the Transferee for any reason including, without limitation, the non-performance by any party to any Finance Document of any obligations under any Finance Document. |
10 | The address and fax number of the Transferee for the purposes of clause 18 of the Loan Agreement are set out in the Schedule. |
11 | This certificate may be executed in any number of counterparts each of which shall be original but which shall together constitute the same instrument. |
12 | This certificate and any non-contractual obligations arising out of or in connection with it shall be governed by and interpreted in accordance with English law. |
1 | T r ansferor : |
2 | Transferee : |
3 | Transfer Date (not earlier that the fifth Business Day after the date of delivery of the Transfer Certificate to the Agent): |
4 | Transferor's Commitment : |
5 | Amount transferred : |
6 | Transferee's address and fax number for the purposes of clause 18 of the Loan Agreement : |
[name of Transferor]
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[name of Transferee]
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By:
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By:
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Date:
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Date:
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[Agent]
as Agent
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By:
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Date:
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1 | Attached to this Certificate [are][is] the latest [audited consolidated financial statements of the Company and its subsidiaries for the financial year ending on [ l ]] [unaudited consolidated financial statements of the Company including cash flows] in relation to the [first] [second] [third] fiscal quarter of the financial year ending on [ l ]] (the " Accounts "). |
2 | As at the date of this Certificate the financial covenants set out in Clause 12.2 of the Loan Agreement [are] [are not] complied with, in that as at [ l ]: |
(a) | Consolidated Interest Coverage Ratio is [ l ] |
(b) | Maximum Leverage Ratio is [ l ] |
(c) | Minimum Consolidated Net Worth is [ l ] |
(d) | Consolidated Indebtedness is [ l ] |
3 | As at [ l ] no Event of Default has occurred and is continuing. |
4 | [The Fair Market Value of the Vessels as reflected in the most recent valuations are as follows: |
Name of Vessel
|
Name of First
Approved Ship Broker
|
Name of Second
Approved Ship Broker
|
Average Fair Market Value
|
[
l
]
|
[
l
]
|
[
l
]
|
[
l
]]
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Signed
and
delivered
as a
deed
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by
Genco Shipping & Trading
Limited
|
signature
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
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by
Deutsche Bank AG Filiale
Deutschlandgeschäft
(as a Lender)
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signature
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(as the Borrower)
acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
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by
BNP Paribas
(as a Lender)
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signature
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
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by
Credit Agricole Corporate and
Investment Bank
(as a Lender)
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signature
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
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|||
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
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|
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by
DVB Bank SE
(as a Lender)
|
signature
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
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|||
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
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by
Skandinaviska Enskilda Banken
AB (publ)
(as a Lender)
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signature
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
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|||
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
|
|
|
by
Deutsche Bank AG Filiale
Deutschlandgeschäft
(as a Mandated
Lead Arranger)
|
signature
|
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
|
|||
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
|
|
|
by
BNP Paribas
(as a Mandated Lead
Arranger)
|
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||
acting by
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its duly authorised
in the presence of:
signature
|
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||
of witness
|
|||
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signature
|
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print name
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|||
name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
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|
|
by
Credit Agricole Corporate and
Investment Bank
(as a Mandated
Lead Arranger)
|
signature
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|
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acting by
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its duly authorised
in the presence of:
signature
|
print name
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of witness
|
|||
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
|
|
|
by
DVB Bank SE
(as a Mandated Lead
Arranger)
|
|
||
acting by
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its duly authorised
in the presence of:
signature
|
|
||
of witness
|
|||
|
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signature
|
|
print name
|
|||
name
|
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print name of witness
|
|
|
address
|
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|
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Signed
and
delivered
as a
deed
|
|
|
|
by
Skandinaviska Enskilda Banken
AB (publ)
(as a Mandated Lead
Arranger)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
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of witness
|
|||
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name
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print name of witness
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address
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Signed
and
delivered
as a
deed
|
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|
|
by
Deutsche Bank Luxembourg S.A.
(as the Agent)
|
signature
|
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|
acting by
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its duly authorised
in the presence of:
signature
|
print name
|
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of witness
|
|||
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name
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print name of witness
|
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address
|
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Signed
and
delivered
as a
deed
|
|
|
|
by
BNP Paribas
(as a Swap Provider)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
|
|
of witness
|
|||
|
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name
|
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|
|
print name of witness
|
|
|
address
|
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|
|
Signed
and
delivered
as a
deed
|
|
|
|
by
Credit Agricole Corporate and
Investment Bank
(
as a Swap
Provider)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
|
|
of witness
|
|||
|
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|
|
name
|
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|
|
print name of witness
|
|
|
address
|
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|
|
Signed
and
delivered
as a
deed
|
|
|
|
by
DVB Bank SE
(as a Swap Provider)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
|
|
of witness
|
|||
|
|
|
|
name
|
|
|
|
|
print name of witness
|
|
|
address
|
|
|
|
Signed
and
delivered
as a
deed
|
|
|
|
by
Deutsche Bank AG
(as a Swap
Provider)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
|
|
of witness
|
|||
|
|
|
|
name
|
|
|
|
|
print name of witness
|
|
|
address
|
|
|
|
Signed
and
delivered
as a
deed
|
|
|
|
by
Skandinaviska Enskilda Banken
AB (publ)
(as a Swap Provider)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
|
|
of witness
|
|||
|
|
|
|
name
|
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|
|
print name of witness
|
|
|
address
|
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|
|
Signed
and
delivered
as a
deed
|
|
|
|
by
Deutsche Bank AG Filiale
Deutschlandgeschäft
(as Security
Agent and Bookrunner)
|
signature
|
|
|
acting by
|
|
|
|
its duly authorised
in the presence of:
signature
|
print name
|
|
|
of witness
|
|||
|
|
|
|
name
|
|
|
|
|
print name of witness
|
|
|
address
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Aquitaine Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
address
|
299 Park Avenue
|
|||
20
th
Floor
|
||||
New York, NY 10171
|
Signed
and
delivered
as a
deed
by
Genco Ardennes Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
|
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Auvergne Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Bourgogne Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
|
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Brittany Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Languedoc Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
|
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Loire Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
|
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Lorraine Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
|
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Normandy Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Picardy Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
|
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Provence Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Pyrenees Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Genco Rhone Limited
(as a Guarantor)
acting by
its duly authorised
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
in the presence of:
signature
|
|
/s/ John C. Wobensmith
|
|
|
signature
|
|
|||
John C. Wobensmith
|
|
|||
print name
|
|
|||
of witness | /s/ Apostolos Zafolias | |||
|
|
|
|
|
name
|
Apostolos Zafolias
|
|
|
|
|
print name of witness
|
|
|
|
address
|
299 Park Avenue
20
th
Floor
New York, NY 10171
|
|
|
|
Signed
and
delivered
as a
deed
by
Credit Agricole Corporate and Investment Bank
(as a Mandated Lead Arranger)
acting by
its duly authorised
in the presence of:
signature
|
|
/s/ Georg Junginger
|
|
|
Signature
|
|
|||
Georg Junginger
|
|
|||
print name
|
|
|||
of witness | /s/ Yip Yuen YI | |||
|
|
|
|
|
name
|
Yip Yuen YI
|
|
|
|
|
print name of witness
|
|
|
|
address
|
Stephenson Harwood LP
|
|
|
|
|
1 Finsbury Circus
London
EC2M 7SH
|
|
|
|
Clause
|
|
Page
|
1
|
DEFINITIONS AND CONSTRUCTION
|
1
|
|
|
|
2
|
AMENDMENT AND RESTATEMENT
|
2
|
|
|
|
3
|
WAIVERS
|
2
|
|
|
|
4
|
CONFIRMATIONS
|
2
|
|
|
|
5
|
REPRESENTATIONS AND WARRANTIES
|
3
|
|
|
|
6
|
FEES AND EXPENSES
|
3
|
|
|
|
7
|
GOVERNING LAW AND JURISDICTION
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3
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8
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FINANCE DOCUMENTS
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4
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SCHEDULE 1 CONDITIONS PRECEDENT
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5
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DATED
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9 July 2014
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(1) | GENCO SHIPPING & TRADING LIMITED , a company organised and existing under the laws of the Republic of the Marshall Islands (the " Borrower "); |
(2) | The Subsidiaries of the Borrower listed in Schedule 2 of Appendix A as guarantors ( the " Guarantors "); |
(3) | The banks and financial institutions listed in Schedule 1 of Appendix A as lenders (the " Lenders "); |
(4) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK as agent of the Lenders (the " Agent "); and |
(5) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK as security trustee (the " Security Trustee "). |
(A) | This Agreement is supplemental to and amends a US$100,000,000 loan agreement dated 12 August 2010 among the Parties (as defined in clause 1.1 of this Agreement (Definitions) ), as amended (the " Loan Agreement "). |
(B) | The Parties have agreed to amend and restate the Loan Agreement on the terms of this Agreement. |
2.1 | Amendment and Restatement |
(a) | each Creditor Party and each Obligor confirms that the Loan Agreement, as amended and restated by this Agreement, remains in full force and effect on and after the Amendment and Restatement Effective Date; and |
(a) | the date of this Agreement; and |
(b) | the Amendment and Restatement Effective Date. |
6.1 | Arrangement Fee |
6.2 | Structuring Fee |
6.3 | Amendment Expenses |
7.1 | Governing Law |
7.2 | Enforcement |
1. | Corporate Documentation |
1.1 | All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement and the other Finance Documents shall be satisfactory in form and substance to the Lenders, and the Lenders shall have received all information and copies of all documents which the Lenders may reasonably have requested in connection herewith and therewith, such documents where appropriate to be certified by proper corporate officials or governmental authorities; and |
1.2 | Copies of resolutions of directors of each Obligor: |
(a) | approving and authorising the execution, delivery and performance of the Amendment Documents and affirmation of the continued enforceability and validity of each previously executed Finance Document (and of each document required to be delivered by each Finance Document); |
(b) | showing that the relevant board meeting was quorate, that due consideration was given by all the relevant directors present of that Obligor's liabilities arising under this Agreement and that all declarations of interest required in connection with this Agreement were made; and |
(c) | authorising any director whose name and specimen signature is set out in those minutes to sign this Agreement and any other documents to be executed or delivered pursuant to it. |
2. | Other Documentation |
2.1 | Duly executed Amendment Documents; |
2.2
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Certificates of good standing for each Obligor; |
2.3 | Evidence that (i) the Mortgage Amendments will be capable of being registered against the Vessels and (ii) the discharge of the Second Security Documents will be capable of being recorded against the Vessels; and |
2.4 | A certificate from each of the Obligors satisfactory in form and substance to the Lenders, the statements in which shall be true and correct as to compliance with the conditions listed in this Schedule 1 and Clause 4 of Annex A. |
3. | Miscellaneous |
3.1 | Certification that no statute, rule or regulation (including, without limitation, any statute, rule or regulation relating to taxation) of any governmental body shall be pending or shall have come into effect which is likely to have a material and adverse effect on the transactions contemplated by this Agreement and the other Finance Documents; |
3.2 | Certification that all representations and warranties of the Obligors herein (except with respect to Clause 11.1(j)) shall be true, and correct on and as of the Amendment and Restatement Effective Date with the same effect as though such representations and warranties had been made on and as of such date; provided , however, that to the extent any representation or warranty expressly relates to an earlier date, such representation and warranty shall be true and correct in all material respects as of such date; |
3.3 | Evidence that (i) the Bankruptcy Court shall have entered the Confirmation Order, which shall, among other things, authorize the transactions contemplated under this Agreement; (ii) the Confirmation Order has not been stayed, modified or vacated on appeal; and (iii) the Confirmation Order shall be a final order in full force and effect; and |
3.4 | Evidence that the effective date of the Plan of Reorganization shall have occurred on or before the later of (A) ten (10) calendar days following the entry of the Confirmation Order, (B) completion of the Rights Offering (as defined in the Plan of Reorganization) or (C) upon notice from the Agent (acting upon the direction of the Lenders) that the conditions in this section have been satisfied or waived in accordance with this Agreement, and in each case, no later than 1 August 2014, and all conditions precedent to the effectiveness of the Plan of Reorganization shall have been fulfilled or waived (in accordance with the provisions of the Plan of Reorganization), including the execution, delivery and performance of all instruments, documents and agreements necessary to effectuate the Plan of Reorganization. |
BORROWER
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SIGNED
by
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)
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/s/ John C. Wobensmith
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for and on behalf of
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)
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John C. Wobensmith
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GENCO SHIPPING
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)
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& TRADING LIMITED
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)
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Chief Financial Officer, Principal Accounting Officer and Secretary
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)
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in the presence of
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Witness:
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/s/ Alexander Traum |
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Name: Alexander Traum | ||||
Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
GUARANTORS
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SIGNED
by
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)
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/s/ John C. Wobensmith
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for and on behalf of
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)
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John C. Wobensmith
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GENCO BAY LIMITED
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)
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)
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Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
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in the presence of
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in the presence of
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Witness:
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/s/ Alexander Traum |
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Name: Alexander Traum
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Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
SIGNED
by
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/s/ John C. Wobensmith
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for and on behalf of
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)
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John C. Wobensmith
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GENCO OCEAN LIMITED
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)
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)
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Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
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in the presence of
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in the presence of
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Witness:
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/s/ Alexander Traum |
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Name: Alexander Traum | ||||
Address: 1177 Avenue of the Americas, New York, NY 10036 |
SIGNED
by
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)
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/s/ John C. Wobensmith
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for and on behalf of
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)
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John C. Wobensmith
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GENCO AVRA LIMITED
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)
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Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
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in the presence of
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in the presence of
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Witness:
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/s/ Alexander Traum | |||
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Name: Alexander Traum
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Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
SIGNED
by
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/s/ John C. Wobensmith
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for and on behalf of
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)
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John C. Wobensmith
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GENCO MARE LIMITED
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)
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Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
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in the presence of
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in the presence of | ||||
Witness:
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/s/ Alexander Traum | |||
Name: Alexander Traum
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Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
SIGNED
by
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)
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/s/ John C. Wobensmith
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for and on behalf of
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)
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John C. Wobensmith
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GENCO SPIRIT LIMITED
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)
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Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
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in the presence of
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in the presence of | ||||
Witness:
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/s/ Alexander Traum | |||
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Name: Alexander Traum
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Address: 1177 Avenue of the Americas, New York, NY 10036 |
LENDERS
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SIGNED
by for and on behalf of
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/s/ Michael Choina
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/s/ Jerome Duval
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CRÉDIT AGRICOLE CORPORATE
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Michael Choina
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Jerome Duval
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AND INVESTMENT BANK
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Director
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Managing Direcor
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in the presence of
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
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Street New York, NY 10019
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in the presence of
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
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Street New York, NY 10019
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SIGNED
by for and on behalf of
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/s/ Andrew McKuin
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/s/ Adrienne Molloy
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Crédit Industriel
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Andrew McKuin
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Adrienne Molloy
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et Commercial
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Vice President
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Vice President
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in the presence of
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Witness:
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/s/ Maria Kaczorowski
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/s/ Maria Kaczorowski
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Name:
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Maria Kaczorowski
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Maria Kaczorowski
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Address: |
520 Madison Avenue
New York, NY 10022
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520 Madison Avenue
New York, NY 10022
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SIGNED
by for and on behalf of
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/s/ Micael Ljungren
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/s/ Jan Dahl
é
n
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Skandinaviska Enskilda
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Michael Ljunggren
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Jan Dajlén
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Banken AB (publ)
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in the presence of
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Witness:
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/s/ Anne Geelmuyden
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Name:
Anne Geelmuyden
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Address: Storgatan 11, 11444 Stockholm
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AGENT
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SIGNED
by for and on behalf of
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/s/ Michael Choina
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CRÉDIT AGRICOLE AND INVESTMENT
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)
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Michael Choina
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BANK INVESTMENT BANK
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Director
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in the presence of
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
nd
Street New York, NY 10019
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in the presence of
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/s/ Jerome Duval
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Witness:
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/s/ Thomas Bullock
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Jerome Duval
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Name:
Thomas Bullock
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Managing Director
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Address: 51 West 52
nd
Street New York, NY 10019
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SECURITY TRUSTEE
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SIGNED
by for and on behalf of
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/s/ Michael Choina
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/s/ Jerome Duval
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CRÉDIT AGRICOLE CORPORATE AND
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Michael Choina
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Jerome Duval
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INVESTMENT BANK
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Director
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Managing Direcor
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in the presence of
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
nd
Street New York, NY 10019
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in the presence of
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
nd
Street New York, NY 10019
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Page | ||
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1
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INTERPRETATION
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2
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2
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AVAILABILITY OF THE LOAN AND DRAWDOWN
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24
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3
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DRAWDOWN
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24
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4
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CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT AND RESTATEMENT
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25
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5
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REPAYMENT AND PREPAYMENT
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26
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6
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INTEREST
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28
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7
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CHANGES TO CALCULATION OF INTEREST
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28
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8
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DEFAULT INTEREST
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30
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9
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GUARANTEE AND INDEMNITY
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31
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10
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OPERATING ACCOUNTS
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33
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11
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REPRESENTATIONS AND WARRANTIES
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35
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12
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UNDERTAKINGS
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39
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13
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CORPORATE UNDERTAKINGS OF THE GUARANTORS
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48
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14
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INSURANCE UNDERTAKINGS
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49
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15
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SHIP UNDERTAKINGS
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52
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16
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SECURITY COVER
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52
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17
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PAYMENTS AND CALCULATIONS
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54
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18
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APPLICATION OF RECEIPTS
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55
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19
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EVENTS OF DEFAULT AND ACCELERATION
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55
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20
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FEES AND EXPENSES
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60
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21
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TAXES; EXPENSES AND INDEMNITIES
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61
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22
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ILLEGALITY, ETC
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63
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23
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INCREASED COSTS
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63
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24
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SET‑OFF
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65
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25
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TRANSFERS AND CHANGES IN LENDING OFFICES
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65
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26
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VARIATIONS AND WAIVERS
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68
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27
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NOTICES
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69
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28
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SUPPLEMENTAL
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70
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29
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LAW AND JURISDICTION
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71
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SCHEDULE 1
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LENDERS AND COMMITMENTS
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73
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SCHEDULE 2
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GUARANTORS
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74
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SCHEDULE 3
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FORM OF DRAWDOWN NOTICE
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75
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SCHEDULE 4
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[INTENTIONALLY OMITTED.]
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77
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SCHEDULE 5
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LOAN REPAYMENT
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78
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SCHEDULE 6
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TRANSFER CERTIFICATE
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83
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SCHEDULE 7
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MANDATORY COSTS
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87
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Page | ||
SCHEDULE 8
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FORM OF MORTGAGE
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89
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SCHEDULE 9
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FORM OF COMPLIANCE CERTIFICATE
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90
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(1) | GENCO SHIPPING & TRADING LIMITED a company organised and existing under the laws of the Republic of the Marshall Islands (the “ Borrower ”); |
(2) | THE COMPANIES listed in Schedule 2, as Guarantors ; |
(3) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1, as Lenders ; |
(4) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK , as Agent ; and |
(5) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK , as Security Trustee . |
(A) | On 12 August, 2010, the Borrower, the Guarantors, the Lenders, the Agent and the Security Trustee executed that certain Loan Agreement, as amended prior to the Amendment and Restatement Effective Date (the “ Prepetition Loan Agreement ”) to make loans (such loans, the “ Prepetition Loans ”) for the purpose of financing a portion of the Purchase Price of each Vessel. |
(B) | On 21 April, 2014 (the “ Petition Date ”), the Borrower and fifty-seven of its subsidiaries, including the Guarantors, filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (as amended, the “ Bankruptcy Code ”), in the United States Bankruptcy Court for the Southern District of New York (the “ Bankruptcy Court ”) commencing the chapter 11 cases which are jointly administered under case number 14-11108-shl (each a “ Case ” and, collectively, the “ Cases ”). The Borrower and the Guarantors continued in the possession and operation of their assets and in the management of their businesses pursuant to sections 1107 and 1108 of the Bankruptcy Code throughout the Cases. |
(C) | As part of the Plan of Reorganization, the Obligors have requested that certain amendments be made to the Prepetition Loan Agreement as set out in a restructuring term sheet attached as an exhibit to the Restructuring Support Agreement to enable the reorganized Obligors to, among other things, consummate the transactions contemplated by the Plan of Reorganization and to pay related fees and expenses, and the Lenders have agreed, subject to the terms and conditions hereof, to enter into this Agreement |
(D) | The parties have negotiated to this Agreement at arm’s length and in good faith, and the proposed financing constitutes good and valuable consideration for the Borrower and Guarantors. |
(E) | To provide continuing security for the repayment of the Loans and the payment of other Obligations of the Borrower hereunder and under the other Finance Documents, the Obligors have provided and granted, and will continue to provide and grant to the Security Trustee, for the benefit of the Creditor Parties, certain Security Interests, as more fully described herein. |
(F) | The Guarantors have guaranteed the obligations of the Borrower hereunder and secured their respective Secured Liabilities by granting to the Security Trustee, for the benefit of the Creditor Parties, a Security Interest in the Vessels described herein and the proceeds from the operation of the Vessels. |
1 | INTERPRETATION |
(a) | in relation to the Tranche A Loan 30 September 2010; |
(b) | in relation to the Tranche B Loan 20 August 2010; |
(c) | in relation to the Tranche C Loan 31 July 2011; |
(d) | in relation to the Tranche D Loan 30 September 2011; and |
(e) | in relation to the Tranche E Loan 31 December 2011; |
(a) | all freight, hire and passage moneys, compensation payable to the Borrower, the Guarantors or the Security Trustee in the event of requisition of a Vessel 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 other contract for the employment of a Vessel; |
(b) | all moneys which are at any time payable under Insurances in respect of loss of earnings; and |
(c) | if and whenever a Vessel is employed on terms whereby any moneys falling within paragraphs (a) or (b) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to a Vessel; |
(a) | any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or |
(b) | any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident; |
(a) | any release of Environmentally Sensitive Material from a Vessel; |
(b) | any incident in which Environmentally Sensitive Material is released from a vessel other than a Vessel under this Agreement and which involves a collision between a Vessel and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Vessel is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Vessel and/or the Borrower, Guarantors, the Charterer, the Technical Manager, the Commercial Manager and/or any owner, operator or manager of a Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or |
(c) | any other incident in which Environmentally Sensitive Material is released otherwise than from a Vessel and in connection with which a Vessel is actually or potentially liable to be arrested and/or where the Borrower the Guarantors, the Technical Manager, the Commercial Manager and/or any operator or manager of a Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action; |
(a) | this Agreement; |
(b) | the Agency and Security Trust Deed; |
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(c) | each Mortgage; |
(d) | the General Assignment Deed; |
(e) | the Accounts Pledge; |
(f) | the Share Charge; |
(g) | that certain indemnity letter dated as of February 19, 2014, among the Agent, the Borrower and the Guarantors; and |
(h) | any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the other documents referred to in this definition; |
(a) | for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; |
(b) | under any loan stock, bond, note or other security issued by the debtor; |
(c) | under any acceptance credit, guarantee or letter of credit facility made available to the debtor; |
(d) | under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor (but for the avoidance of doubt excluding any operating lease); |
(e) | under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or |
(f) | under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person; |
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(a) | in relation to Tranche A, the last day of the calendar quarter in which the Drawing in relation to Tranche A is made; |
(b) | in relation to Tranche B, the last day of the calendar quarter in which the Drawing in relation to Tranche B is made; |
(c) | in relation to Tranche C, the last day of the calendar quarter in which the Drawing in relation to Tranche C is made; |
(d) | in relation to Tranche D, the last day of the calendar quarter in which the Drawing in relation to Tranche D is made; and |
(e) | in relation to Tranche E, the last day of the calendar quarter in which the Drawing in relation to Tranche E is made; |
(a) | all policies and contracts of insurance, including entries of a Vessel in any protection and indemnity or war risks association, which are effected in respect of a Vessel, its Earnings or otherwise in relation to it; and |
(b) | all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium; |
(a) | before any Loan has been made, Lenders whose Commitments total 66.66 per cent. of the Total Commitments; and |
(b) | after any Loan has been made, Lenders whose Contributions total 66.66 per cent. of the Loan; |
(a) | Security Interests created by the Finance Documents; |
(b) | liens for unpaid master’s and crew’s wages in accordance with usual maritime practice; |
(c) | liens for salvage; |
(d) | liens arising by operation of law for not more than 2 months’ prepaid hire under any charter in relation to a Vessel not prohibited by this Agreement; |
(e) | liens for master’s disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Vessel, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance to article II section 9(c) of each Mortgage; |
(f) | any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Borrower is actively prosecuting or defending such proceedings or arbitration in good faith; and |
(g) | Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made; |
(a) | any Finance Document; |
(b) | any policy or contract of insurance contemplated by or referred to in a Mortgage or any other provision of this Agreement or another Finance Document; |
(c) | any other document contemplated by or referred to in any Finance Document; and |
(d) | any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c); |
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(a) | the country under the laws of which the company is incorporated or formed; |
(b) | a country in which the company's central management and control is or has recently been exercised; |
(c) | a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax; |
(d) | a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and |
(e) | a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (a) or (b); |
(a) | any transaction or matter contemplated by, arising out of, or connection with a Pertinent Document; or |
(b) | any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a); |
(a) | appears (or would be required to appear) as “Restricted” on a consolidated balance sheet of the Borrower or of any such Subsidiary (unless such appearance is related to the Finance Documents or Security Interests created thereunder); |
(b) | are subject to any lien in favour of any Person other than the Security Trustee or the Agent for the benefit of the Creditor Parties; or |
(c) | are not otherwise generally available for use by the Borrower or such Subsidiary; |
(a) |
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
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(b) | the security rights of a plaintiff under an action in rem ; and |
(c) | any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution; |
(a) | the Availability Period for each Loan has expired and all amounts which have become due for payment by the Borrower or any Obligor under the Finance Documents have been paid; |
(b) | no amount is owing or has accrued (without yet having become due for payment) under any Finance Document; |
(c) | neither the Borrower nor any Obligor has any future or contingent liability under Clause 20 or 21 or any other provision of this Agreement or another Finance Document; and |
(d) | the Agent, the Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of the Borrower or any of the Guarantors or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document; |
(a) | any actual, constructive, compromised, agreed or arranged total loss of a Vessel; |
(b) | any expropriation, confiscation, requisition, condemnation, purchase, forfeiture or acquisition of or taking title to that Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension), unless it is within 1 month redelivered to the relevant Guarantor's full control; or |
(c) | any arrest, capture, seizure or detention of the Vessel (including any hijacking or theft) unless it is within 1 month redelivered to the relevant Guarantor's full control; |
(a) | in the case of an actual loss of a Vessel, the date on which it occurred or, if that is unknown, the date when the Vessel was last heard of; |
(b) | in the case of a constructive, compromised, agreed or arranged total loss of the Vessel, the earliest of: |
(i) | the date on which a notice of abandonment is given to the insurers; and |
(ii) | the date of any compromise, arrangement or agreement made by or on behalf of the relevant Guarantor, with the Vessel's insurers in which the insurers agree to treat the Vessel as a total loss; and |
(c) | in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred; |
(a) | this Agreement; |
(b) | each Charter; |
(c) | each other Finance Document; |
(d) | any other document, notice, letter or instrument entered into, issued or given pursuant to the express terms of any of the foregoing; and |
(e) | any other document, notice, letter or instrument designated as a Transaction Document by the Agent and the Borrower; |
(a) | On each Vessel Exchange Date, if the Subsidiary of the Borrower owning the Acceptable Replacement Vessel is not a Guarantor, (A) such Subsidiary shall execute and deliver an accession deed to this Agreement and (B) the Borrower shall pledge and deliver, or cause to be pledged and delivered, all of the capital stock of such Subsidiary to the Security Trustee; |
(b) | On each Vessel Exchange Date, the Agent shall have received from counsel acceptable to the Agent consummating the relevant Vessel Exchange opinions reasonably satisfactory to the Agent practicing in those jurisdictions in which the Acceptable Replacement Vessel is registered and/or the Guarantor owning such Acceptable Replacement Vessel is organized, which opinions shall be addressed to the Agent and each of the Lenders and dated such Vessel Exchange Date, which shall (x) be in form and substance reasonably acceptable to the Agent and (y) cover the perfection of the security interests granted pursuant to the Mortgage(s) and such other matters incident thereto as the Agent may reasonably request; |
(c) | On each Vessel Exchange Date, the Guarantor which is consummating a Vessel Exchange on such date shall have duly authorized, executed and delivered a General Assignment Deed and Accounts Pledge in each case together with: |
(i) | proper Financing Statements (Form UCC-1) fully executed for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Agent, desirable to perfect the security interests purported to be created by the General Assignment Deed and Accounts Pledge; |
(ii) | certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements that name any Guarantor as debtor and that are filed in the jurisdictions referred to in clause (A) above, together with copies of such other financing statements (none of which shall cover the Collateral except to the extent evidencing Permitted Security Interests unless in respect of which the Agent shall have received Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully executed for filing if required by applicable laws); and |
(iii) | evidence that all other actions necessary or, in the reasonable opinion of the Agent, desirable to perfect and protect the security interests purported to be created by the General Assignment Deed and Accounts Pledge have been taken; |
(d) | On each Vessel Exchange Date, the Guarantor which is consummating a Vessel Exchange on such date shall have duly authorized, executed and delivered, and caused to be recorded in the appropriate vessel registry a Mortgage with respect to |
(e) | On each Vessel Exchange Date, the Agent shall have received each of the following with respect to the relevant Acceptable Replacement Vessel: |
(i) | certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed certificates and indicating) the registered ownership of such Acceptable Replacement Vessel by the relevant Guarantor; |
(ii) | the results of maritime registry searches with respect to such Acceptable Replacement Vessel, indicating no record Security Interests other than Permitted Security Interests; |
(iii) | class certificates from an Approved Classification Society indicating that such Acceptable Replacement Vessel is classed in the highest class available for vessels of its age and type free of any conditions or recommendations other than those approved by the Agent; |
(iv) | an Appraised Value from an Approved Appraiser in scope, form and substance reasonably satisfactory to the Agent; and |
(v) | a report, in form and scope reasonably satisfactory to the Agent, from a firm of independent marine insurance brokers reasonably acceptable to the Agent with respect to the insurance maintained by the Guarantor in respect of such Acceptable Replacement Vessel, together with a certificate from such broker certifying that such insurances (i) are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as are customarily insured against by similarly situated insureds for the protection of the Agent and/or the Lenders as mortgagee and (ii) conform with the insurance requirements of this Agreement; |
(a) | on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or |
(b) | on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day; |
(a) | references in Clause 1.1 to a Finance Document or any other document being in the form of a particular schedule include references to that form with any modifications to that form which the Agent (with the authorisation of the Majority Lenders in the case of substantial modifications) approves or reasonably requires; |
(b) | references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise; |
(c) | references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise; |
(d) | words denoting the singular number shall include the plural and vice versa; and |
(e) | Clauses 1.1 to 1.4 apply unless the contrary intention appears. |
(a) | Interests several. The rights of the Lenders under this Agreement are several; |
(b) | Individual Lender’s right of action. Any legal action brought to recover any amount which has become due and payable by the Borrower or any Guarantor under this Agreement or any other Finance Document shall, where possible, be brought by the Agent in the joint names of all the Lenders. In case such action is required, for formal reasons, to be brought by the Lenders themselves then the Lenders shall act together, and the Agent shall co-ordinate such proceedings; |
(c) | Proceedings requiring Majority Lenders’ consent. No proceedings against the Borrower or any other Obligor in connection with this Agreement or any Finance Document or to recover sums payable hereunder or thereunder may be commenced without the prior consent of the Majority Lenders; |
(d) | Agent’s Powers. Wherever possible, action and legal proceedings to be brought under paragraphs (b) and (c) shall be brought by the Agent on behalf of all the Lenders, where applicable under the direction of the Majority Lenders; |
(e) | Obligations several. The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in: |
(i)
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the obligations of any of the other Lenders being increased;
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(ii)
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any Obligor or any other Lender being discharged (in whole or in part) from
its obligations under this Agreement or any other Finance Document; or
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(iii)
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any other Lender having any responsibility for such failure.
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1.7 | Reimbursements. All expenses reimbursable to a Creditor Party by the Borrower pursuant to Clauses 20 and 21 and or other similar provisions relating to reimbursement of expenses contained elsewhere in the Finance Documents shall be properly incurred and evidenced by invoices. |
2 | AVAILABILITY OF THE LOAN AND DRAWDOWN |
2.1 | Facility maximum amount. Subject to the other provisions of this Agreement, the Lenders shall make available to the Borrower a term loan credit facility which shall comprise a maximum aggregate amount of up to $100,000,000 (one hundred million Dollars) (i.e. $20,000,000 (twenty million Dollars) in respect of each Tranche), which shall be made available in (5) five tranches as follows: |
(a) | Tranche A, available in one Drawing, in an amount equal to the lesser of (i) $20,000,000, (twenty million Dollars) and (ii) 76.92% of the valuation of Vessel A; |
(b) | Tranche B, available in one Drawing, in an amount equal to the lesser of (i) $20,000,000, (twenty million Dollars) and (ii) 76.92% of the valuation of Vessel B; |
(c) | Tranche C, available in one Drawing, in an amount equal to the lesser of (i) $20,000,000, (twenty million Dollars) and (ii) 76.92% of the valuation of Vessel C; |
(d) | Tranche D, available in one Drawing, in an amount equal to the lesser of (i) $20,000,000, (twenty million Dollars) and (ii) 76.92% of the valuation of Vessel D; and |
(e) | Tranche E, available in one Drawing, in an amount equal to the lesser of (i) $20,000,000, (twenty million Dollars) and (ii) 76.92% of the valuation of Vessel E. |
2.2 | Purpose: The Borrower has applied all amounts borrowed by it under any Tranche as required under the Prepetition Loan Agreement. |
2.3 | Intentionally omitted. |
2.4 | No duty to verify application of funds borrowed. No Creditor Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. |
2.5 | Termination of Commitment. The Lenders’ Commitment in respect of a Loan will terminate on the expiry of the Availability Period in respect of that Loan or, if earlier, upon the relevant Vessel becoming a Total Loss. Any part of a Commitment undrawn at the end of the relevant Availability Period or upon the Vessel becoming a Total Loss will be immediately cancelled. |
2.6 | Lenders' participations in Drawings. Subject to the other provisions of this Agreement, each Lender shall participate in each Drawing in the proportion which, as at the relevant Drawdown Date, its Commitment in respect of the relevant Tranche bears to the Total Commitments in respect of that Tranche as specified in Schedule 1. |
3 | DRAWDOWN |
3.1 | Request for advance of Loan. Subject to the following conditions, the Borrower may request a Drawing to be made by ensuring that the Agent receives a completed Drawdown Notice not later than 10.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date. |
(a) | the Drawdown Date has to be a Business Day during the Availability Period applicable to that Tranche; |
(b) | the Tranche to be utilised must be identified; |
(c) | there shall be no more than five (5) Drawings; |
(d) | the proposed currency and amount of the Drawing must comply with Clause 2.1; |
(e) | subject to Clause 2.3, a Drawing shall be made upon or following the acquisition of a Vessel by a Guarantor and only one Drawing shall be made in respect of each Vessel; and |
(f) | the aggregate amount of a Drawing in respect any Tranche shall not exceed the Total Commitments for such Tranche. |
3.3 | Notification to Lenders of receipt of a Drawdown Notice. The Agent shall immediately notify the Lenders that it has received a Drawdown Notice from the Borrower in respect of its intention to make a Drawing and shall inform each Lender of: |
(a) | the amount of the Drawing and the Drawdown Date; |
(b) | the amount of that Lender's participation in the Drawing; and |
(c) | the duration of the first Interest Period. |
3.4 | Drawdown Notice irrevocable. A Drawdown Notice must be signed by a duly authorised person on behalf of the Borrower; and once served, a Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Majority Lenders. |
3.5 | Lenders to make available Contributions . Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent for the account of the Borrower the amount due from that Lender under Clause 2.6. |
3.6 | Disbursement of Loan . Subject to the provisions of this Agreement, the Agent shall on the Drawdown Date pay to the Borrower the amounts which the Agent receives from the Lenders under Clause 3.5; and that payment to the Borrower shall be made: |
(a) | to the account which the Borrower specifies in the Drawdown Notice; and |
(b) | in the like funds as the Agent received the payments from the Lenders. |
3.7 | Disbursement of Loan to Borrower. The payment by the Agent under Clause 3.6 to the Borrower shall constitute the making of the Loan and the Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution. |
4 | CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT AND RESTATEMENT |
4.1 | Documents, fees and no default. The effectiveness of this amendment and restatement of the Agreement is subject to the following conditions precedent: |
(a) | the documents delivered pursuant to Clause 4.1(a) of the Prepetition Loan Agreement are (i) valid and in full force and effect, and have not been modified in any way, except as otherwise certified to the Agent, or (ii) no longer applicable; and |
(b) | the satisfaction of the Agent and Security Trustee in its reasonable discretion of each of the conditions precedent set forth in Schedule 1 of the Amendment and Restatement Agreement dated the date hereof among the parties hereto. |
5 | REPAYMENT AND PREPAYMENT |
5.1 | Timing and amount of repayment instalments. The Borrower shall: |
(a) | repay each Loan to the Lenders in consecutive quarterly instalments on the last day of each calendar quarter commencing on the last day of the calendar quarter in which the Drawdown Date occurs with respect to such Loan (each such quarterly payment date, a “ Repayment Date ”); and |
(b) | pay to the Agent, on the Amendment and Restatement Effective Date, for the account of the applicable Lenders, any due and unpaid quarterly instalments described in Schedule 5 of the Prepetition Loan Agreement for any calendar quarter in which the Cases were pending. |
5.2 | Amortization schedule. The Agent shall prepare an amortization schedule for the Loan advanced on each Drawdown Date, such amortization schedule to be calculated on the basis of a thirteen (13) year linear amortization of such Loan, calculated from each Drawdown Date; provided that the amount to be repaid on the First Repayment Date for each Loan shall be reduced on a pro rata basis for the number of days from (and including) the first day of the calendar quarter in which the Drawdown Date for that Loan occurs to (but excluding) such Drawdown Date. Each amortization schedule prepared by the Agent in accordance with this Clause 5.2 shall be conclusive and binding, absent manifest error, and shall be attached by the Agent to this Agreement as Schedule 5. |
5.3 | Final Maturity Date. On the Final Maturity Date, the Borrower shall pay in full the outstanding balance of the Loans and shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document. |
5.4 | Voluntary Prepayment. Subject to the conditions set forth in Clause 5.5, the Borrower may prepay the whole or any part of a Loan. |
(a) | a partial prepayment shall be a minimum amount of $1,000,000 or an integral multiple of $1,000,000; |
(b) | the Agent has received from the Borrower at least 5 Business Days' prior written notice specifying the amount to be prepaid and the date on which the prepayment is to be made; and |
(c) | the Borrower has provided evidence satisfactory to the Agent that any consent required by the Borrower or any Obligor in connection with the prepayment has been obtained and remains in force, and that any regulation relevant to this Agreement which affects the Borrower or any Obligor has been complied with. |
5.6 | Effect of notice of prepayment. A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice. |
5.7 | Notification of notice of prepayment. The Agent shall notify the Lenders promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered by the Borrower under Clause 5.5 (c). |
5.8 | Mandatory prepayment. Subject to Clause 5.12, the Borrower shall be obliged to prepay the whole of any Loan: |
(a) | in the case of a sale of the related Vessel by the relevant Guarantor, on or before the date on which the sale is completed; |
(b) | in the case of a Total Loss of the related Vessel, on the earlier of the date falling 120 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss; and |
(c) | if without prior approval of the Agent (on instructions of the Majority Lenders), there is a Change of Control without the Agent’s consent in which case each of the Loans shall be prepaid within five (5) Business Days of such Change of Control. |
5.9 | Amounts payable on prepayment. A prepayment shall be made together with accrued interest (and any other amount payable under Clause 20 or otherwise) in respect of the amount prepaid and, if the prepayment is not made on the last day of an Interest Period together with any sums payable under Clauses 21.3 and 21.4 but without premium or penalty. |
5.10 | Application of partial prepayment. Each partial prepayment shall be applied against the repayment instalments specified in Clause 5.1 in inverse order of maturity. Upon any partial prepayment of a Loan, the Agent shall prepare a replacement Schedule 5 for that Loan, which replacement schedule shall be conclusive and binding, absent manifest error. In the case of a partial prepayment under Clause 5.4, such prepayment shall be applied to the Loan designated by the Borrower in its notice of prepayment, or, if no such Loan is designated by the Borrower, shall be applied on a pro rata basis against all Loans, based on the outstanding principal balance of each Loan immediately prior to such prepayment. |
5.12 |
Exchange of Mortgaged Vessel following a Total Loss.
In the event of Total Loss of a Mortgaged Vessel, the Borrower and each of the Guarantors shall act in accordance with Clause 5.8 or, with the prior written consent of all of the Lenders (which the Lenders may grant or withhold in their sole discretion) and so long as (i) no Potential Event of Default or Event of Default has occurred and is continuing (or would arise after giving effect thereto), and (ii) all representations and warranties made by the Obligors pursuant to Clause 11 of this Agreement are true and correct both before and after the Vessel Exchange Date, the relevant Guarantor may elect to exchange such Mortgaged Vessel for an Acceptable Replacement Vessel pursuant to a Vessel Exchange; provided further that the Borrower shall have delivered to the Agent an officer’s certificate, certified by the senior financial officer of the
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5.13 | Dissolution of Guarantor following Vessel Exchange. Following a Vessel Exchange permitted by this Agreement, the Guarantor which owned the Vessel that is the subject of such Vessel Exchange may dissolve (if such Guarantor is not the owner of the Acceptable Replacement Vessel exchanged for such Vessel), provided , that (x) such Guarantor shall have transferred its Operating Account to the Guarantor which owns the Acceptable Replacement Vessel, (y) all of the proceeds of such dissolution shall be paid only to the Borrower and (z) no Event of Default is continuing unremedied at the time of such dissolution. |
5.14 | Escrow: Any insurance proceeds received in respect of the Total Loss of a Mortgaged Vessel which is being exchanged pursuant to a Vessel Exchange shall be held in escrow by the Agent for a period of 90 days following the Vessel Exchange Date. |
6 | INTEREST |
(a) | General. The Borrower shall pay accrued interest on each Loan free of any deductions or withholdings, at the rate and at the times determined under this Clause 6.1; |
(b) | Commencement of Interest Periods. the first Interest Period for each Loan shall commence on the Drawdown Date for each Loan and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period; |
(c) | Rate of interest. interest on each Loan will be payable at a rate per annum which is equal to the aggregate of (i) LIBOR for the relevant Interest Period; (ii) the Margin and (iii) the Mandatory Cost (if any); |
(d) | Computation of interest. interest will be computed in accordance with Clause 17.2. |
(e) | Payment dates for interest. interest due under this Clause 6.1 shall be paid on the last day of each relevant Interest Period; and |
(f) | Interest Periods. for the calculation of interest, the Borrower shall select interest periods (each an “ Interest Period ”) in respect of each Loan as follows: |
(i) | each Interest Period shall be of either one (1), three (3) or six (6) months duration, as selected by the Borrower and notified to the Agent not less than three (3) Business Days before the first day of the Interest Period or any other period mutually agreed by the Borrower and the Agent, or if the Borrower fails to so notify the Agent, of three (3) months duration; |
(ii) | the first Interest Period for each Loan will start on its Drawdown Date; and |
(iii) | prior to each Repayment Date, in determining the interest rate for a Loan, the Agent may shorten an Interest Period for any Loan to ensure that the applicable Interest Period for such Loan ends on a Repayment Date (in the |
7 |
CHANGES TO CALCULATION OF INTEREST
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7.1 | Obligation of Reference Banks to quote. A Reference Bank which is a Lender shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under this Agreement. |
7.2 | Absence of quotations by Reference Banks. If any Reference Bank fails to supply a quotation, the Agent shall determine the relevant LIBOR on the basis of the quotations supplied by the remaining Reference Banks; but if (2) or more of the Reference Banks fail to provide a quotation, the relevant rate of interest shall be set in accordance with the following provisions of this Clause 7. |
(a) | The Screen Rate is not available and none or only one of the Reference Banks provide quotations to the Agent in order to fix LIBOR before 1.00 p.m. (London time) on the Quotation Date for an Interest Period; |
(b) | at least 1 Business Day before the start of an Interest Period, Lenders having Contributions together amounting to more than 50 per cent. of the Loan notify the Agent that LIBOR fixed by the Agent would not accurately reflect the cost to those Lenders of funding their respective Contributions (or any part of them) during the Interest Period in the London Interbank Market at or about 11.00 a.m. (London time) on the Quotation Date for the Interest Period; or |
(c) | at least 1 Business Day before the start of an Interest Period, the Agent is notified by a Lender (the “ Affected Lender ”) that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period. |
7.4 | Notification of market disruption. The Agent shall promptly notify the Borrower and each of the Lenders stating the circumstances falling within Clause 7.3 which have caused its notice to be given. |
7.5 | Suspension of drawdown . If the Agent's notice under Clause 7.4 is served before the Loan is made: |
(a) | in a case falling within Clauses 7.3(a) or (b), the Lenders' obligations to make the Loan; and |
(b) | in a case falling within Clause 7.3(c), the Affected Lender's obligation to participate in the Loan; |
7.6 | Negotiation of alternative rate of interest. If the Agent’s notice under Clause 7.4 is served after the Loan is made, the Borrower, the Agent, the Lenders or (as the case may be) the Affected Lender shall use reasonable endeavours to agree, within the 30 days after the date on which the Agent serves its notice under Clause 7.4 (the “ Negotiation Period ”), an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the |
7.7 | Application of agreed alternative rate of interest. Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed. |
7.8 | Alternative rate of interest in absence of agreement. If an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the cost of funding of the Lenders or (as the case may be) the Affected Lender in Dollars or in any available currency of their or its Contribution plus the Margin; and the procedure provided for by this Clause 7.8 shall be repeated if the relevant circumstances are continuing at the end of the interest period so set by the Agent. |
7.9 | Notice of prepayment. If the Borrower does not agree with an interest rate set by the Agent under Clause 7.8, the Borrower may give the Agent not less than 15 Business Days' notice of its intention to prepay the Loan or, as the case may be, the Affected Lender's Contribution at the end of the interest period set by the Agent. |
7.10 | Prepayment; termination of Commitments. A notice under Clause 7.9 shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrower's notice of intended prepayment and: |
(a) | on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and |
(b) | on the last Business Day of the interest period set by the Agent, the Borrower shall prepay (without premium or penalty) the Loans or, as the case may be, the Affected Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin. |
7.11 | Application of prepayment. The provisions of Clause 5.10 shall apply in relation to the prepayment. |
8 | DEFAULT INTEREST |
8.1 | Payment of default interest on overdue amounts. The Borrower shall pay interest in accordance with the following provisions of this Clause 8 on any amount payable by the Borrower under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is: |
(a) | the date on which the Finance Documents provide that such amount is due for payment; |
(b) | if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or |
(c) | if such amount has become immediately due and payable under Clause 19.6 (Acceleration of Loan), the date on which it became immediately due and payable. |
8.2 | Default rate of interest. Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be two (2) per cent. above: |
(a) | in the case of an overdue amount of principal, the higher of the rates set out in Clauses 8.3(a) and (b); or |
(b) | in the case of any other overdue amount, the rate set out at Clause 8.3(b). |
(a) | the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period); and |
(b) | the Margin plus, in respect of successive periods of any duration (including at call) up to 3 months which the Agent may select from time to time: |
(i) | LIBOR; or |
(ii) | if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for any such period are not being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine. |
8.4 | Notification of interest periods and default rates. The Agent shall promptly notify the Lenders and the Borrower of each interest rate determined by the Agent under Clause 8.3 and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that the Borrower is liable to pay such interest only with effect from the date of the Agent's notification. |
8.5 | Payment of accrued default interest. Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due. |
8.6 | Compounding of default interest. Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded. |
9 | GUARANTEE AND INDEMNITY |
9.1 | Guarantee and indemnity. Each Guarantor irrevocably and unconditionally jointly and severally: |
(a) | guarantees to each Creditor Party punctual payment and performance by the Borrower of all the Borrower's obligations under this Agreement and each of the other Finance Documents; |
(b) | undertakes with each Creditor Party that whenever the Borrower does not pay any amount when due under or in connection with this Agreement or any of the other Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and |
(c) | agrees with each Creditor Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Creditor Party immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 9 if the amount claimed had been recoverable on the basis of a guarantee. |
9.2 | Continuing Guarantee. This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part. |
9.3 | Reinstatement. If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Creditor Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 9 will continue or be reinstated as if the discharge, release or arrangement had not occurred. |
9.4 | Waiver of defences. The obligations of each Guarantor under this Clause 9 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 9 (without limitation and whether or not known to it or any Creditor Party) including: |
(a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
(b) | the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person; |
(e) | any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or |
(g) | any insolvency or similar proceedings. |
9.5 | Immediate Recourse. Each Guarantor waives any right it may have of first requiring any Creditor Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 9. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. |
9.6 | Appropriations. Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Creditor Party (or any trustee or agent on its behalf) may: |
(a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Creditor Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and |
(b) | hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 9. |
9.7 | Deferrals of Guarantor's rights. Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 9: |
(a) | to be indemnified by an Obligor; |
(b) | to claim any contribution from any other guarantor (including any other Guarantor) of any Obligor's obligations under the Finance Documents; |
(c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Creditor Party; |
(d) | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under this Clause 9; |
(e) | to exercise any right of set-off against any Obligor; and/or |
(f) | to claim or prove as a creditor of any Obligor in competition with any Creditor Party. |
9.8 | Release of Guarantors' right of contribution. If any Guarantor (a " Retiring Guarantor ") ceases to be a Guarantor in accordance with the terms of the Creditor Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor: |
(a) | that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and |
(b) | each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
9.9 | Additional security. This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Creditor Party. |
10 | OPERATING ACCOUNTS |
10.1 | Account Bank . The Operating Accounts referred to in this Clause 10 are opened by the Guarantors with the Agent. |
(a) | Each Guarantor shall maintain the following accounts in respect of each Vessel at the relevant branch of the Agent, denominated in Dollars, which shall together be the " Operating Accounts ": |
(i) | Operating Account in the name of Genco Bay Operating Account with Number 00 250 713 960; |
(ii) | Operating Account in the name of Genco Ocean Operating Account with Number 00 250 714 057; |
(iii) | Operating Account in the name of Genco Avra Operating Account with Number 00 250 714 154; |
(iv) | Operating Account in the name of Genco Mare Operating Account with Number 00 250 714 251; and |
(v) | Operating Account in the name of Genco Spirit Operating Account with Number 00 250 714 348; |
(b) | each Operating Account shall be a separate account at the Agent; |
(c) | each Guarantor shall ensure at all times that the aggregate balance of all of the Operating Accounts is not less than the product of $750,000 and the number of Mortgaged Vessels (the " Minimum Balance "). The Minimum Balance shall be maintained by the Guarantors and constituted by the Guarantors on or before the date of a Drawing in relation to a Loan; |
(d) | neither the existence of an Operating Account, nor the insufficiency of funds in any of them, nor any inability to apply any funds in any of them towards the relevant payment, shall affect the obligation of the Borrower and Guarantors to make all payments required to be made to the Creditor Parties or any of them on the due date for payment in accordance with the Finance Documents; and |
(e) | no sum may be credited to or withdrawn from any Operating Account except as expressly permitted by this Agreement. |
(a) | The Agent shall, save as otherwise provided herein, maintain each Operating Account in accordance with any mandate agreed with the Guarantors (from time to time); and |
(b) | if there is any conflict between the Finance Documents and either any mandate agreed by the Agent or the Agent’s normal practices, the provisions of the Finance Documents shall prevail but only to the extent that the Agent would not be in a breach of law as a result. |
10.4 | Operation of Operating Accounts . The Borrower shall procure and each Guarantor shall ensure during the Security Period, the payment into each Guarantor's Operating Account of: |
(a) | all Earnings with respect to the Vessel owned by such Guarantor; and |
(b) | any other amounts received by such Guarantor for any reason whatsoever. |
(a) | Subject to Clause 17.6, the Agent shall not be obliged to make available to the Guarantors any sum which it is expecting to receive for the account of the Guarantors until it has received it; and |
(b) | the Guarantors shall promptly convert, or instruct the Agent to convert, into Dollars at a reasonable market rate any funds received by them in a currency other than Dollars for crediting to the relevant Operating Account on the day of conversion into Dollars. |
10.6 | Withdrawals from Operating Accounts. All requests for withdrawals from an Operating Account shall be made in accordance with the relevant Guarantor’s mandate with the Agent. |
10.7 | No withdrawals in certain circumstances. Notwithstanding anything else in this Clause 10, no withdrawal shall be made by any Guarantor from any Operating Account: |
(i) | following the occurrence and during the continuation of any Potential Event of Default or any Event of Default or if the proposed withdrawal would cause a Potential Event of Default or Event of Default; |
(ii) | if, prior to the date of the relevant proposed withdrawal, the Agent (either generally, or with reference to the specific withdrawal or Operating Account) notifies the applicable Guarantor that the withdrawal is not or would not be permitted under this Agreement and such notice shall specify (for the benefit of such Guarantor) the provision of this Agreement which prohibits such withdrawal; or |
(iii) | to the extent that the aggregate balance standing to the credit of all of the Operating Accounts is less than the Minimum Balance or would be reduced to below the Minimum Balance as a result of such withdrawal. |
(a) | The Operating Accounts shall earn interest at such rate(s) as may be agreed from time to time by the Guarantors and the Agent. Such interest shall be credited to the relevant Operating Account; and |
(b) | any reference in this Agreement to the balance standing to the credit of the Operating Account includes any interest so credited to it after taking account of any Tax attributable to the interest to the extent considered appropriate by the Agent. |
11 | REPRESENTATIONS AND WARRANTIES |
11.1 | General representations. Each Obligor jointly and severally represents and warrants to each Creditor Party that: |
(a) | Status: it is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has power to carry on its business as it is now being conducted and to own its property and other assets and has duly qualified to do business in all jurisdictions where such qualification is necessary to carry on its present business and operations and to own its properties and perform its obligations under the Financing Documents to which it is a party; |
(b) | Corporate power: it has the power to: |
(i) | execute, deliver and, as applicable, affirm the Transaction Documents to which it is a party; |
(ii) | comply with the provisions of and perform each of its obligations under the Transaction Documents to which it is a party; and |
(iii) | in the case of the Borrower to borrow under this Agreement and to make all payments contemplated by, and to comply with the Transaction Documents; |
(c) | Consents in force: all the authorisations referred to in Clause 11.1(b) remain in force and nothing has occurred which makes any of them liable to revocation; |
(d) | No conflicts: the execution and performance by it of the Transaction Documents to which it is a party and in the case of the Borrower the borrowing of the full amount of each Loan does not contravene any law, regulation, judicial or administrative decree or conflict with its constitutional documents or any contractual or other obligation or restriction which is binding on it or any of its assets; |
(f) | No governmental approvals or consents: there are no governmental approvals or consents which are necessary for the execution and performance by an Obligor of this Agreement or any of the other Transaction Documents to which it is a party or for this Agreement or any of the other Transaction Documents to which it is a party to be enforceable against any Obligor, other than those which have already been obtained; |
(g) | No third party Security Interests: without limiting the generality of Clause 11.1(e), at the time of execution and delivery of each Transaction Document to which that Obligor is a party: |
(i) | such Obligor will have the right to create all the Security Interests which that Transaction Document purports to create; |
(ii) | no third party will have any Security Interests (except for Permitted Security Interests or, with respect to a Vessel, Security Interests permitted under the Mortgage covering such Vessel) or any other interest, right or claim over, in or in relation to any asset to which such Security Interest, by its terms relates; and |
(iii) | the Security Interests in each Vessel granted, or to be granted, to the Security Trustee pursuant to the General Assignment Deed and the Mortgage in the property purported to be covered thereby, (i) constitute or will constitute upon the acquisition of such Vessel by a Guarantor (A) with respect to the General Assignment Deed, a valid and perfected first priority security interest under the UCC or other applicable law and (B) with respect to the Mortgage, a first preferred ship mortgage on the Vessel, (ii) will be entitled to all of the rights, benefits and priorities provided by the UCC or other applicable law, as applicable and (iii) will be superior and prior to the rights of all third persons or entities (other than those whose claims are mandatorily preferred by law and those that constitute Permitted Security Interests), now existing or hereafter arising whether by way of any lien or otherwise to the extent provided by the UCC or other applicable law. All filings have been accomplished, or will be accomplished upon the mortgaging |
(h) | No proceedings: there are no proceedings before any arbitration tribunal, court, government agency or administrative body pending or threatened against any Obligor, which, to the best of the Borrower's knowledge, is likely to be adversely determined, and would (if adversely determined) be likely to have a Material Adverse Effect; |
(i) | No default: no Obligor is in default under any Transaction Document to which it is a party or any other material agreement or obligation to which it is a party or by which it is bound; |
(j) | No Event of Default: no Potential Event of Default or Event of Default has occurred and is continuing; and |
(k) | No notarisations, filings, etc. required: there are at the date of the execution of this Agreement no notarisations, filings, recordings, registrations or enrolments in any court, public office of any jurisdiction applicable to an Obligor which are necessary in order to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement or the other Transaction Documents to which it is a party and any such notarisations, filings, recordings, registrations or enrolments as may be necessary to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement and the Mortgage covering the Vessel being mortgaged by a Guarantor shall have been obtained. |
11.2 | Borrower representations. The Borrower represents and warrants to each Creditor Party (for itself and on behalf of the Guarantors) that: |
(a) | No withholding taxes: all payments which an Obligor is liable to make under the Finance Documents may be made without deduction or withholding for an account of any tax payable under any law of any Pertinent Jurisdiction; |
(b) | Information: all relevant information which has been produced in writing by or on behalf of the Obligors to any Creditor Party in connection with any Finance Document satisfied the requirements of such Finance Document; all audited and unaudited accounts which have been so provided satisfy the requirements of Clauses 12.1(a) and 12.1(c), there has been no material adverse change in the financial position or state of affairs of the Borrower from that disclosed in the latest of those accounts or financial statements; |
(c) | Taxes paid: each Obligor has paid or has provided adequate reserves (in accordance with GAAP) for the payment of, all material taxes applicable to, or imposed on or in relation to such Obligor, its business or the Vessel owned by it and has filed or caused to be filed all material tax returns, reports, forms or similar documents which are required to be filed by it; |
(d) | No litigation: no legal or administrative action involving an Obligor (including action relating to any alleged or actual breach of the ISM Code) has been commenced or taken or, to the Borrower’s knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect; |
(e) | Title to Vessels: each Guarantor which has mortgaged a Vessel has good and marketable title to that Vessel free and clear of all Security Interests other than Permitted Security Interests; |
(f) | Adequacy of disclosure: the representations and warranties made by each Obligor in connection with any of the transactions contemplated hereby and any other document furnished by any Obligor to any Creditor Party, or in connection with the transactions contemplated hereby are true and correct as of the date hereof. There is no fact which the Borrower has not disclosed to the Agent, in relation to the Obligors, in writing which may have a Material Adverse Effect; |
(g) | No rebates, etc.: there is no agreement or understanding to allow or pay any rebate, premium, commission, discount or other benefit or payment (howsoever described) to an Obligor, the Seller or a third party in connection with the purchase by the relevant Obligor of each Vessel, other than as disclosed to the Lenders in writing on or prior to the date of this Agreement; |
(h) | ISM Code compliance: all requirements of the ISM Code as they relate to each Guarantor, the Technical Manager, the Commercial Manager, and each Vessel have been complied with; |
(i) | ERISA: each Plan, other than any Multiemployer Plan (and each related trust, insurance contract or fund), is in substantial compliance with its terms and with all applicable laws, including without limitation ERISA and the Code; each Plan, other than any Multiemployer Plan (and each related trust, if any), which is intended to be qualified under Section 401(a) of the Code has received a determination letter from the Internal Revenue Service to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable Event has occurred; to the best knowledge of the Borrower or any of its Subsidiaries or ERISA Affiliates, no Plan which is a Multiemployer Plan is insolvent or in reorganization; no Plan has an Unfunded Current Liability in an amount material to the Borrower’s operation; no Plan (other than a Multiemployer Plan) which is subject to Section 412 of the Code or Section 302 of ERISA has failed to meet minimum funding standards within the meaning of such sections of the Code or ERISA, or has applied for or received a variance from minimum funding standards within the meaning of Section 412 of the Code or Section 302 of ERISA; all contributions required to be made with respect to a Plan have been or will be timely made (except as disclosed on Schedule VI); neither the Borrower nor any of its Subsidiaries nor any ERISA Affiliate has incurred any material liability (including any indirect, contingent or secondary liability) to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such liability under any of the foregoing sections with respect to any Plan; no condition exists which presents a material risk to the Borrower or any of its Subsidiaries or any ERISA Affiliate of incurring a liability to or on account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no proceedings have been instituted by the PBGC to terminate or appoint a trustee to administer any Plan (in the case of a Multiemployer Plan, to the best knowledge of the Borrower or any of its Subsidiaries or ERISA Affiliates) which is subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation with respect to the administration, operation or the investment of assets of any Plan (other than routine claims for benefits) is pending, or, to the best knowledge of the Borrower or any of its Subsidiaries, expected or threatened which could reasonably be expected to have a Material Adverse Effect; using actuarial assumptions and computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, the Borrower and its Subsidiaries and ERISA Affiliates would have no liabilities to any Plans which are Multiemployer Plans in the event of a complete withdrawal therefrom in an amount which could reasonably be expected to have a Material Adverse Effect; each group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees or former employees of the Borrower, any of its Subsidiaries, or any ERISA Affiliate has at all times been operated in material compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien imposed under the Code or ERISA on the assets |
(j) | OFAC: it is not a "national" of any "designated foreign country", within the meaning of the Foreign Assets Control Regulations or the Cuban Asset Control Regulations of the U.S. Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended, or a "specially designated national" listed by the Office of Foreign Assets Control (" OFAC "), the U.S. Department of the Treasury, or any regulations or rulings issued thereunder. Neither the making of the Advance nor the use of the proceeds thereof nor the performance by the Borrower of its obligations under any of the Finance Documents to which it is a party violates any statute, regulation or executive order restricting loans to, investments in, or the export of assets to, foreign countries or entities doing business there. |
11.3 | Reliance on representations and warranties. The Obligors acknowledge that each Creditor Party has expressly entered into this Agreement in reliance on, and upon the condition that there are made, all of the declarations of the Obligors in this Clause 11. |
11.4 | Repeating representations and warranties. The declarations made by the relevant Obligors in Clause 11.1 and 11.2 shall be deemed to be repeated on each Repayment Date and by reference to the facts and circumstances then existing. |
12 | UNDERTAKINGS |
12.1 | General. The Borrower shall undertake with each Creditor Party that, for so long as sums are owing or may be owing under this Agreement or any of the other Finance Documents, and unless the Agent, on the instructions of the Majority Lenders, may otherwise permit, the Borrower shall: |
(i) | within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q if the Borrower is required to file such a Quarterly Report) after the end of each of the first three fiscal quarters of each fiscal year (commencing with the second fiscal quarter of 2014), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and (commencing in fiscal year 2014) setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a senior financial officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of Quarterly Reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this paragraph (b) to the extent such quarterly reports include the information specified herein); provided , that the Borrower shall also deliver financial statements contemplated under this Clause 12.1(a)(i) including Baltic; and |
(ii) | within 110 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K if the Borrower is required to file such an Annual Report) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries (which for these purposes shall include Baltic) as of the close of such fiscal year and the consolidated results of its operations during such fiscal year and (commencing in fiscal year 2014) setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries (which for these purposes shall include Baltic) on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of Annual Reports on Form 10-K of the Borrower and its consolidated Subsidiaries (which for these purposes shall include Baltic) shall satisfy the requirements of this paragraph (a) to the extent such Annual Reports include the information specified herein); provided , that the Borrower shall also deliver unaudited financial statements contemplated under this Clause 12.1(a)(ii) excluding Baltic; |
(b) | Status and place of business: maintain, and cause each Guarantor to maintain, its respective corporate existence under the laws of the jurisdiction of its incorporation and shall maintain its place of business and keep their corporate documents and records, at the address or addresses stated at the commencement of this Agreement; |
(c) | Contents of Financial Statements: the financial statements to be delivered pursuant to Clause 12.1(a) shall: |
(i) | be prepared in accordance with all applicable laws and GAAP consistently applied; |
(ii) | give a true and fair view of the state of affairs of (x) the Borrower and its consolidated Subsidiaries (including Baltic) at the date of those accounts and of profit for the period to which those accounts relate calculated in accordance with GAAP and (y) the Borrower and its consolidated Subsidiaries (excluding Baltic) at the date of those accounts and of profit for the period to which those accounts relate); |
(iii) | fully disclose or provide for all significant liabilities of (x) the Borrower and its consolidated Subsidiaries (including Baltic) calculated in accordance with GAAP and (y) the Borrower and its consolidated Subsidiaries (excluding Baltic); and |
(iv) | at the time of the delivery of the financial statements, deliver a compliance certificate of the senior financial officer of the Borrower in the form of Schedule 9 to the effect that, to the best of the Borrower’s knowledge, no Potential Event of Default or Event of Default has occurred and is continuing or, if any Potential Event of Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof (in reasonable detail), which certificate shall set forth the calculations required to establish whether the Borrower was in compliance with the financial obligations in Clause 12.2(d) to (f), inclusive, at the end of such fiscal quarter or year, as the case may be; |
(d) | Material Adverse Effect: promptly advise the Agent or procure that the Agent is advised of any event or circumstance which, in the reasonable opinion of the Borrower, would be likely to have a Material Adverse Effect; |
(e) | Litigation: promptly give written notice to the Agent or procure that written notice is given to the Agent of any litigation or arbitration or administrative or other proceedings before or of any arbitration tribunal court, governmental agency or administrative body affecting any Guarantor or any Vessel (which is in respect of a claim in excess of $2,000,000) or affecting the Borrower (which is in respect of a claim in excess of $10,000,000); |
(f) | Compliance with laws: comply with and procure that each Guarantor will comply with the requirements of all laws, rules, regulations, orders and decrees of any administrative, governmental, or judicial authority or other organisation or body, applicable to any Obligor or to the Vessels, the non‑compliance with which could have a Material Adverse Effect; |
(g) | Payment of taxes: pay and discharge or procure the payment and discharge of all taxes, assessments and governmental charges (being taxes, assessments or charges related to any Vessel or which, if unpaid, might result in any action being taken relating to any Vessel) imposed on any Obligor by any competent authority on or before the date the same shall become due unless the same are being contested in good faith by due action on the part of the relevant Obligor which do not give rise to any risk of seizure or arrest of any Vessel which the relevant Obligor or the relevant Obligor would be unable to lift or have discontinued promptly following imposition thereof; |
(h) | ERISA: as soon as reasonably possible and, in any event, within ten (10) days after the Borrower or any of its Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of any of the following, the Borrower will deliver to the Agent, with sufficient copies for each of the Lenders, a certificate of the senior financial officer of the Borrower setting forth the full details as to such occurrence and the action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given to or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto: that a Reportable Event has occurred (except to the extent that the Borrower has previously delivered to the Administrative Agent a certificate and notices (if any) concerning such event pursuant to the next clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof), and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with respect to such Plan within the following 30 days; that a failure to satisfy minimum funding standards, within the meaning of Section 412 of the Code or Section 302 of ERISA, has occurred or an application may be or has been made for a waiver or modification of the minimum funding standard (including any required instalment payments) under Section 412 of the Code or Section 302 of ERISA with respect to a Plan; that any contribution required to be made with respect to a Plan or Foreign Pension Plan has not been timely made and such failure could result in a material liability for the Borrower or any of its Subsidiaries; that a Plan (in the case of a Multiemployer Plan, to the best knowledge of the Borrower or any of its Subsidiaries or ERISA Affiliates) has been or may be reasonably expected to be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA with a material amount of unfunded benefit liabilities; that a Plan (in the case of a Multiemployer Plan, to the best knowledge of the Borrower or any of its Subsidiaries or ERISA Affiliates) has a material Unfunded Current Liability; that proceedings may be reasonably expected to be or have been instituted by the PBGC to terminate or |
(i) | Know your client: upon the Agent’s request, promptly supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent in order for each Lender to carry out and be satisfied with the results of all necessary "know your client" or other checks which it is required to carry out in relation to the transactions contemplated by this Agreement and the other Finance Documents and to the identity of any parties to the Finance Documents (other than the Lenders) and their directors and officers; and |
(j) | OFAC: shall to the best of its knowledge and ability: |
(i) | ensure that no person who owns a controlling interest in or otherwise controls the Borrower or any Subsidiary thereof is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by OFAC or included in any Executive Orders; |
(ii) | comply, and cause each of its Subsidiaries to comply, with all applicable Bank Secrecy Act laws and regulations, as amended; |
(iii) | not use or permit the use of the proceeds of the Loan to violate any of the foreign asset control regulations of OFAC or any enabling statute or Executive Order relating thereto; and |
(k) | Vessel Documents: provide, to the Security Trustee’s reasonable satisfaction, evidence of (i) the release or termination or discharge of all liens granted to, created or purported to be created under the Second Security Documents, (ii) the registration |
12.2 | Negative Undertakings . The Borrower further undertakes with each Creditor Party that, for so long as sums are owing or may be owing under this Agreement or any other Finance Document, and unless otherwise expressly permitted by the Majority Lenders, the Borrower shall: |
(a) | No amendment to any Transaction Document: not agree and procure that the Guarantors do not agree to any material amendment or supplement to, or waive or fail to enforce, any Transaction Document to which any Obligor is a party; |
(b) | No disposal of the Vessels: subject to Clause 5.12, and except pursuant to the relevant Finance Documents, not make and procure that the Guarantors shall not make any act of disposal of any nature whatever of any of the Vessels, whether gratuitous or otherwise, or enter into any commitment to third parties affecting the ownership of any Vessel (unless the effectiveness of such commitment is itself expressed to be conditional upon the prior mandatory prepayment of the relevant Loan pursuant to Clauses 5.8 (a) and 5.9); |
(c) | No change in Technical Manager or Commercial Manager: not change and shall procure that there is no change to, the Technical Manager or the Commercial Manager without the prior written consent of the Agent, acting upon instruction of the Majority Lenders (with such consent not to be unreasonably withheld); |
(d) | Maximum Leverage Ratio: not permit the Leverage Ratio on the last day of any fiscal quarter of the Borrower ended on or after the Amendment and Restatement Effective Date, to be greater than 5.50:1.00; provided that such requirement shall not apply during the Financial Covenant Holiday; and provided further that, if, under the DB Credit Facility or any Additional Facility (a) the maximum “Leverage Ratio” (or equivalent ratio) covenant is at any time set at a level less than 5.50:1.00, the “Maximum Leverage Ratio” covenant level hereunder shall be automatically amended to mean such lower ratio and (b) if, in the Agent’s reasonable discretion, the definition of “Leverage Ratio” (or equivalent term) is defined more favourably to any lender under the DB Credit Facility or any Additional Facility, the definition of “Leverage Ratio” hereunder shall be automatically amended to mean such more favourable ratio. |
(e) | Minimum Consolidated Interest Coverage Ratio: not permit the Consolidated Interest Coverage Ratio on the last day of any fiscal quarter of the Borrower ended on or after the Amendment and Restatement Effective Date, to be less than 2.00:1.00; provided that such requirement shall not apply during the Financial Covenant Holiday; and provided further that, if, under the DB Credit Facility or any Additional Facility (a) the minimum “Consolidated Interest Coverage Ratio” (or equivalent ratio) covenant is at any time set at a level greater than 2.00:1.00, the “Minimum Consolidated Interest Coverage Ratio” covenant level hereunder shall be automatically amended to mean such higher ratio and (b) if, in the Agent’s reasonable discretion, the definitions of “Consolidated EBITDA” or “Consolidated Interest Expense” (or equivalent terms) are defined more favourably to any lender under the DB Credit Facility or any Additional Facility, the respective definitions of “Consolidated EBITDA” and “Consolidated Interest Expense” hereunder shall be automatically amended to mean such more favourable terms. |
(f) | Consolidated Net Worth: not permit its Consolidated Net Worth at any time to be less than the Minimum Consolidated Net Worth; provided that such requirement shall not apply during the Financial Covenant Holiday; and provided further that, if, under the DB Credit Facility or any Additional Facility, in the Agent’s reasonable discretion, |
(g) | Dividends: not, and will not permit any of the Guarantors to, authorize, declare or pay any Dividends with respect to the Borrower or any of the Guarantors, except that, after the Financial Covenant Holiday, other than with respect to clauses (i) and (iv) below, which shall be allowed at all times: |
(i) | (x) any Subsidiary (including Baltic) of the Borrower which is not a Guarantor may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower (including Baltic), (y) any Guarantor may pay Dividends to the Borrower or any other Guarantor and (z) if the respective Subsidiary is not a Wholly-Owned Subsidiary of the Borrower, such Subsidiary (including Baltic) may pay cash dividends to its shareholders generally so long as the Borrower and/or its respective Subsidiaries which own equity interests in the Subsidiary paying such Dividends receive at least their proportionate share thereof (based upon their relative holdings of the equity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests of such Subsidiary); |
(ii) | so long as no Potential Event of Default or Event of Default has occurred and is continuing, the Borrower may make, pay or declare cash Dividends; provided that, for all Dividends paid pursuant to this clause (ii), (A) Dividends shall be paid within 90 days of the declaration thereof; (B) Dividends paid in respect of a fiscal quarter shall only be paid after the date of delivery of quarterly or annual financial statements for such fiscal quarter, pursuant to Clause 12.1(a) and on or prior to 45 days after the last day of the immediately succeeding fiscal quarter, (C) no Potential Event of Default or Event of Default has occurred and is continuing at the time of declaration, (D) no Potential Event of Default or Event of Default has occurred and is continuing (or would arise after giving effect thereto) at the time of payment and (E) on or prior to the declaration and payment of a Dividend, the Borrower shall deliver to the Agent an officer’s certificate signed by the senior financial officer of the Borrower certifying that the requirements set forth in this clause (ii) are satisfied; |
(iii) | so long as no Potential Event of Default or Event of Default has occurred and is continuing, the Borrower may purchase or redeem shares of common stock in the Borrower in market purchases under Rule 10b-18 or other purchases approved by the Borrower’s board of directors, any committee thereof or any authorized officer for the immediately preceding fiscal quarter; provided that, (A) no Potential Event of Default or Event of Default has occurred and is continuing at the time of any such purchases, (B) no Potential Event of Default or Event of Default would arise after giving effect to any such purchases and (C) the Borrower in the exercise of its rights under this Clause 12.2 shall not be permitted to purchase or redeem shares beneficially owned directly or indirectly by Peter Georgiopoulos; and |
(iv) | the Borrower may authorize, declare and distribute a dividend of Rights (as such term is defined and which are convertible into other securities as set forth in the Shareholder Rights Agreement) as contemplated by the Shareholder Rights Agreement. |
(h) | Indebtedness. not, and will not permit any of the Guarantors to, contract, create, incur, assume or suffer to exist any Indebtedness (other than Indebtedness incurred pursuant to this Agreement and the other Finance Documents) except: |
(i) | the Borrower may incur Indebtedness so long as no Potential Event of Default or Event of Default has occurred and is continuing, such Indebtedness would not cause any Potential Event of Default or Event of Default, either on a pro forma basis to include earnings that would have resulted from such Indebtedness for the most recently ended Test Period reported to the Agent, or on a projected basis for the one year period following such incurrence, with each of the covenants set forth in Clause 12.2(d)-(f) inclusive; |
(ii) | the Borrower may enter into and remain liable under Interest Rate Protection Agreements and Other Hedging Agreements entered into in the ordinary course of business and not for speculative purposes; |
(iii) | Indebtedness of the Borrower arising under the DB Credit Facility and Indebtedness to the extent permitted under 12.2(l); and |
(iv) | Indebtedness (other than Financial Indebtedness) of the Guarantors reasonably incurred in the course of operating or chartering a Vessel; |
(i) | Advances, Investments and Loans. will not, and will not permit any of the Guarantors to, directly or indirectly, lend money or credit or make advances to any Person, or purchase or acquire any Equity Interests, or make any capital contribution to any other Person (each of the foregoing an “Investment” and, collectively, “Investments”) except that the following shall be permitted: |
(i) | the Borrower and the Guarantors may acquire and hold accounts receivable owing to any of them; |
(ii) | so long as no Event of Default exists or would result therefrom, the Borrower may make loans and advances in the ordinary course of business to its employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $500,000; |
(iii) | the Guarantors may make intercompany loans and advances to the Borrower and between or among one another, and Subsidiaries of the Borrower (including Baltic) other than the Guarantors may make intercompany loans and advances to the Borrower or any other Subsidiary of the Borrower (including Baltic), provided that any loans or advances to the Borrower or any Guarantors pursuant to this Clause 12.2(i) shall be subordinated to the obligations of the respective Obligor under this Agreement on the following terms: |
(A) | Prohibited Payments. Except when an Event of Default has occurred and is continuing, the Guarantor or Subsidiary (the “ Subordinated Lender ”) which made such loan or advance (the “ Subordinated Obligations ”) may receive payments on account of the Subordinated Obligations. After the occurrence and during the continuation of an Event of Default, except with the prior written consent of the Security Trustee, the Subordinated Lender shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations; |
(B) | Prior Payment of Loan Indebtedness . In the event of the occurrence of any event described in Clause 19.1(f) ( Insolvency Proceedings ) relating to any Obligor (an “Insolvency Proceeding ”), the Subordinated Lender agrees that the Security Trustee and the other Credit Parties shall be entitled to receive payment in full of the |
(C) | Turn-Over . Upon the occurrence and during the continuation of an Event of Default, the Subordinated Lender shall, if the Security Trustee so requests, collect, enforce and receive payment on account of the Subordinated Obligations as trustee for the Security Trustee and the other Credit Parties and deliver such payments to the Security Trustee on account of the Secured Liabilities (including all Post Claim Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Subordinated Lender under the other provisions of this Agreement; |
(D) | Security Trustee’s Authorization . Upon the occurrence and during the continuation of an Event of Default, the Security Trustee is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name and on behalf of the Subordinated Lender, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Secured Liabilities (including any and all Post Claim Interest), and (ii) to require the Subordinated Lender (a) to collect and enforce, and to submit claims in respect of, Subordinated Liabilities and (b) to pay any amounts received on such obligations to the Security Trustee for application to the Secured Liabilities (including any and all Post Claim Interest); and |
(E) | Confirmation of Subordination. The Borrower and the Guarantors hereby agree that all existing and future Subordinated Obligations (i) of the Borrower to any Guarantor, and (ii) of one Guarantor to another Guarantor, are hereby subordinated to the obligations of the respective Obligor under this Agreement on the foregoing terms; |
(iv) | the Borrower may make Investments in the Guarantors and, so long as no Event of Default exists and is continuing, the Borrower may make Investments in its other Wholly-Owned Subsidiaries (including Baltic) so long as management of the Borrower in good faith believe that, after giving effect to such Investment, the Borrower shall be able to meet its payment obligations in respect of this Agreement; |
(v) | so long as no Event of Default exists or could reasonably be expected to result therefrom, the Borrower and its Subsidiaries (other than the Guarantors but including Baltic) may make Investments in joint ventures in the ordinary course of business; and |
(vi) | so long as no Event of Default exists or could reasonably be expected to result therefrom, the Borrower and its Subsidiaries (other than the Guarantors but including Baltic) may make Investments in a Person engaged in drybulk shipping operations; |
(j) | Transactions with Affiliates. will not, and will not permit any of the Guarantors to, enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of such Person, other than on terms and conditions no less favourable to such Person as would be obtained by such |
(i) | Dividends may be paid to the extent provided in Clause 12.2(g); |
(ii) | loans and other Investments may be made and other transactions may be entered into between the Borrower and its Subsidiaries (including Baltic) to the extent permitted by Clauses 12.2(h) and 12.2(i); |
(iii) | the Borrower may pay customary director’s fees; |
(iv) | the Borrower and its Subsidiaries (including Baltic) may enter into employment agreements or arrangements with their respective officers and employees in the ordinary course of business; |
(v) | the Borrower and its Subsidiaries (including Baltic) may pay management fees to Wholly-Owned Subsidiaries of the Borrower (including Baltic) in the ordinary course of business; and |
(vi) | in the event that the Borrower or any of its Subsidiaries (other than a Guarantor but including Baltic) owns, operates or uses an aircraft for business purposes, the foregoing will not prevent arrangements (and such arrangements shall for this purpose be deemed to be arm’s length arrangements) for use of such aircraft when not required for business purposes by directors or officers of the Borrower so long as such travel is authorized pursuant to the Borrower's applicable policies and such directors or officers either: (i) pay pursuant to a time sharing arrangement, a charter or similar arrangements no less than the incremental out of pocket cost to the Borrower and such Subsidiaries of the use of the aircraft; or (ii) pay or are imputed the applicable standard industry fare level for the flight under Internal Revenue Service regulations, in each case as determined by the Borrower; |
(k) | Merger. not sell, transfer or dispose of all or substantially all of its assets whether by one transaction or a series of related transactions and shall not consolidate or merge with any other Person unless (A) at the time of such transaction and after giving effect thereto, no Potential Event of Default or Event of Default shall have occurred and be continuing and (B) the surviving entity in such consolidation or merger shall be the Borrower and the Borrower shall have delivered to the Agent, not less than ten (10) Business Days in advance of such consolidation or merger, an officer’s certificate signed by a senior financial officer of the Borrower, certifying (i) that no Potential Event of Default or Event of Default has occurred and is continuing (or would arise after giving effect to the intended consolidation or merger) and (ii) pro forma financial statements of the Borrower demonstrating the compliance of the Borrower with all covenants under this Agreement after giving effect to such merger or consolidation; |
(l) | Vessel Acquisition Indebtedness. not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness in connection with the acquisition of a vessel in excess of 60% of the acquisition cost of such vessel; provided that such requirement shall not apply after the Financial Covenant Holiday; |
(m) | Fleet Minimum Liquidity . will maintain, with its Subsidiaries on a consolidated basis, at the end of each fiscal quarter, a minimum free cash amount of seven hundred and fifty thousand Dollars ($750,000) per any vessel owned by the Borrower or a Subsidiary of the Borrower at the end of each fiscal quarter and if the DB Credit Facility or any Additional Facility requires an amount of free cash greater than $750,000 per vessel, this Clause 12.2(m) shall be automatically amended to include such greater amount; and |
(n) | Consolidated Indebtedness Limit . not permit, and will procure that its Subsidiaries will not permit, the interest-bearing portion of the Consolidated Indebtedness to exceed 70% of the aggregate amount of the interest-bearing portion of the Consolidated Indebtedness plus Consolidated Net Worth; provided that such requirement shall not apply after the Financial Covenant Holiday; and provided, further, that if, under the DB Credit Facility or any Additional Facility, in the Agent’s reasonable discretion, (a) the maximum level of such ratio (or equivalent term) is less than 70%, the maximum level for such ratio hereunder shall be automatically amended to such lower ratio and (b) if, in the Agent’s reasonable discretion, the definitions of “Consolidated Indebtedness” or “Consolidated Net Worth” (or equivalent terms) are defined more favourably to any lender under the DB Credit Facility or any Additional Facility, the definitions of “Consolidated Indebtedness” or “Consolidated Net Worth” hereunder shall be automatically amended to mean such more favourable terms. |
12.3 | Title; negative pledge. The Borrower will not and will procure that the Guarantors shall not create or permit to arise any Security Interest (except for Permitted Security Interests) over any Vessel or any other asset of any Guarantor, present or future. |
12.4 | Information provided to be accurate. The Borrower shall ensure that all financial and other information which is provided in writing by or on behalf of any Obligor under or in connection with any Finance Document will be true and not misleading and will not omit any material fact or consideration. |
12.5 | Intentionally omitted. |
12.6 | Confirmation of no default. The Borrower will, within 2 Business Days after service by the Agent of a written request thereof, serve on the Agent a notice which is signed by the Chief Financial Officer and which states that: |
(a) | no Event of Default or Potential Event of Default has occurred; or |
(b) | no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material details are given; |
12.7 | Notification of default. The Borrower will notify the Agent as soon as the Borrower becomes aware of: |
(a) | the occurrence of an Event of Default or a Potential Event of Default; or |
(b) | any matter which indicates that an Event of Default or a Potential Event of Default may have occurred; |
12.8 | Provision of further information. The Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information as the Agent or any Lender may (from time to time) reasonably request relating: |
(a) | to the Borrower, the Vessels, the Earnings or the Insurances; or |
(b) | to any other matter relevant to, or to any provision of, a Finance Document; |
13 | CORPORATE UNDERTAKINGS OF THE GUARANTORS |
13.1 | General. The Guarantors undertake (and the Borrower undertakes to cause each Guarantor to) comply with the following provisions of this Clause 13 at all times during the Security Period. |
13.2 | Negative undertakings. The Guarantors will not (and the Borrower undertakes to procure that the Guarantors do not): |
(a) | carry on any business other than the ownership, chartering and operation of the Vessels; |
(b) | pay any Dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital (other than as permitted under clause 12.2(g)); |
(c) | other than as permitted under Clause 12.2(i), provide any form of credit or financial assistance to: |
(i) | a person who is directly or indirectly interested in the Guarantor's share or loan capital; or |
(ii) | any company in or with which such a person is directly or indirectly interested or connected; |
(d) | issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital; |
(e) | acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks; |
(f) | enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; |
(g) | make any loans or advances to any person other than in accordance with Clause 12.2(i); or |
(h) | except for (i) Financial Indebtedness under this Agreement and the other Transaction Documents to which it is a party, (ii) Financial Indebtedness to the Borrower and any Guarantor permitted under Clause 12.2(i) and (iii) Financial Indebtedness permitted under Clause 12.2(l), not incur or agree to incur or issue any Financial Indebtedness, nor make any commitments, other than Security Interests to be created under such Transaction Documents except, with respect to any Guarantor Financial Indebtedness and liabilities arising in the ordinary course of its ownership and chartering of the Vessel that it owns. |
(a) | General. The Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 14 at all times during the Security Period except as the Agent (on the instructions of the Majority Lenders) may otherwise permit; |
(b) | Maintenance of obligatory insurances. each Mortgaged Vessel shall be kept insured against: |
(c) | Terms of obligatory insurances. such insurances shall be effected: |
(i) | in United States Dollars for the insurances referred to in below; |
(ii) | in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least one hundred and thirty per cent (130%) of the relevant amount of the Loan; |
(iii) | in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market and including freight, demurrage and defence; |
(iv) | in relation to protection and indemnity risks for an aggregate amount equal to the highest level of cover afforded by a member of the International Group of Protection and Indemnity Associations; |
(v) | on approved terms; and |
(vi) | through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations; |
(d) | Further protections. in addition to the terms set out in Clause 14(c), the obligatory insurances shall: |
(i) | intentionally omitted; |
(ii) | name the Security Trustee as sole loss payee with a loss payable clause for endorsement in the form annexed to the General Assignment Deed; |
(iii) | provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall and, to the extent the applicable persons referred to in Clause 14(c)(vi) are willing to agree, be made without set-off, counterclaim or deductions or condition whatsoever; |
(iv) | provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other Creditor Party; and |
(v) | provide that the Security Trustee may make proof of loss if the Borrower or a Guarantor fails to do so; |
(e) | Renewal of obligatory insurances. in relation to obligatory insurances: |
(i) | at least 14 (fourteen) days before the expiry of any obligatory insurances, the Security Trustee shall be notified of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom it is proposed that insurance shall be renewed and of the proposed terms of |
(ii) | no later than 7 days before the expiry of any obligatory insurance, the obligatory insurances shall be renewed, in accordance with the requirements of Clause 14(c); and |
(iii) | the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal; |
(f) | Copies of policies; letters of undertaking. the Borrower shall procure that each Guarantor shall ensure that all approved brokers provide the Agent with pro-forma copies of all policies relating to the relevant obligatory insurances which they are to effect or renew and of a letter or letters of undertaking addressed to the Security Trustee and in the form customary for the market from time to time; |
(g) | Copies of certificates of entry. any protection and indemnity and/or war risks associations in which the Mortgaged Vessels are entered shall provide the Security Trustee with: |
(i) | a copy of the certificates of entry for the Mortgaged Vessels; |
(ii) | a letter or letters of undertaking addressed to the Security Trustee in such form as is customary for the market from time to time; and |
(iii) | to the extent applicable, a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Mortgaged Vessel owned by it; |
(h) | Deposit of original policies. all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or renewed; |
(i) | Payment of premiums. all premiums or other sums payable in respect of the obligatory insurances shall be paid punctually and that all relevant receipts are produced when so required by the Security Trustee; |
(j) | Guarantees. any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect; |
(k) | Restrictions on employment. the Mortgaged Vessels shall not be employed or permit to be employed outside the cover provided by any obligatory insurances without first obtaining the consent of the insurers and complying with any requirements (as to extra premiums or otherwise) which the insurers specify; |
(l) | Compliance with terms of insurances . no act or thing shall be done or be omitted which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable thereunder repayable in whole or in part; and, in particular: |
(i) | all necessary action shall be taken and all requirements which may from time to time be applicable to the obligatory insurances shall be complied with (without limiting the obligation contained in Clause 14(c) above) to ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval; and |
(ii) | no changes relating to the classification or classification society or manager or operator of each Mortgaged Vessel shall be made unless approved by the underwriters of the obligatory insurances; |
(m) | Alteration to terms of insurances. no alteration to the terms of any obligatory insurance shall be made or agreed and no right relating to any obligatory insurance shall be waived, as long as the required minimums are maintained; |
(n) | Settlement of claims. without the prior written consent of the Agent, there shall not be any settlement, compromise or abandonment of any claim under any obligatory insurance for Total Loss or for a Major Casualty, and all things necessary shall be done and all documents, evidence and information shall be provided to enable the Security Trustee to collect or recover any moneys which become payable at any time in respect of the obligatory insurances; provided , however , that in the case of a Major Casualty, the Agent shall not unreasonably withhold its consent to any such settlement, compromise or abandonment of any claim; |
(o) | Provision of copies of communications. the Security Trustee, at the time of each such communication, shall be provided with copies of all written communications which could be considered material in the context of any Finance Document with: |
(i) | the approved brokers; |
(ii) | the approved protection and indemnity and/or war risks associations; and |
(iii) | the approved insurance companies and/or underwriters; |
(i) | the obligations of the Borrower relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; or |
(ii) | any credit arrangements made between the Borrower and any of the persons referred to in paragraphs (i) and/or (ii) above relating wholly or partly to the effecting or maintenance of the obligatory insurances; |
(p) | Provision of information. in addition, there shall be provided to the Security Trustee (or any persons which it may designate) any information which the Security Trustee (or any such designated person) reasonably requests for the purpose of: |
(i) | obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; provided always that the Agent shall only require any such report at the time of making the relevant Loan for the Vessel for which such report relates and thereafter if there is a material change to the insurances of a Mortgaged Vessel to those which a report has been previously obtained or prepared; and/or |
(ii) | effecting, maintaining or renewing any such insurances as are referred to in Clause 14 (q) below or dealing with or considering any matters relating to any such insurances; |
(q) | Mortgagee’s interest. the Agent shall, subject as provided below, be entitled from time to time to effect, maintain, and renew a mortgagee’s interest marine insurance in relation to each Mortgaged Vessel in an amount equal to one hundred and ten per cent (110%) of the relevant Loan on such terms, through such insurers and generally in such manner as the Agent (on the instructions of the Majority Lenders) may from time to time consider appropriate. The Borrower upon demand shall indemnify the Agent fully in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering any matter arising out of any such insurance. It is further agreed that, to the extent any surplus funds remain after applying amounts received in respect of a claim on the mortgagee's interest marine insurance, such surplus funds may be paid to the Borrower or other person entitled to it. |
15 | SHIP UNDERTAKINGS |
16 | SECURITY COVER |
16.1 | Minimum required security cover. The Borrower will not permit the aggregate Appraised Value of all Mortgaged Vessels (plus the value of any additional security provided pursuant to Clause 16.2) at any time to equal less than 130% of the aggregate principal amount of outstanding Loans at such time; provided that a default under this Clause 16.1 shall not constitute an Event of Default if the Borrower complies with Clause 16.2 within the time specified therein (it being understood that any action taken under Clause 16.2 in respect of this proviso shall only be effective to cure such default pursuant to this Clause 16.1 to the extent that no Potential Event of Default or Event of Default exists hereunder immediately after giving effect thereto). |
16.2 | Provision of additional security; prepayment. If the Agent serves a notice on the Borrower stating that a default exists under Clause 16.1, the Borrower shall, within thirty (30) days after the date on which the Agent's notice is served, either: |
(a) | provide, or ensure that a third party provides, additional security which, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require; or |
(b) | prepay such part (at least) of the Loans as will eliminate the shortfall. |
16.3 | Valuation of Vessel. The Appraised Value of a Vessel at any date is that shown by a valuation prepared: |
(a) | as at a date not more than 14 days previously; |
(b) | by an Approved Appraiser; |
(c) | with or without physical inspection of a Vessel (as the Agent may require); and |
(d) | on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment. |
16.4 | Value of additional vessel security. The net realisable value of any vessel pledged as additional security under Clause 16.2 shall be its Appraised Value. |
16.5 | Valuations binding. Any valuation under Clause 16.3 or 16.4 shall be binding and conclusive as regards the Borrower, as shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security Interest. |
16.6 | Provision of information. The Borrower shall promptly provide the Agent and any Approved Appraiser with any information which the Agent or the Approved Appraiser may request for the purposes of the valuation; and, if the Borrower fails to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the shipbroker or the Majority Lenders (or the expert appointed by them) consider prudent. |
16.7 | Payment of valuation expenses. Without prejudice to the generality of the Borrower's obligations under Clauses 20 and 21, the Borrower shall, on demand, pay the Agent the reasonable amount of the fees and expenses of any shipbroker or expert instructed by the Agent under this Clause and all reasonable legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause 16.7. |
16.8 | Appraisal of the Vessels. The Borrower shall procure, at its own expense, that a valuation of the Vessels in accordance with Clause 16.3 is undertaken on the six month anniversary of the first Drawdown Date and on each six month anniversary thereafter, starting from the date of this Agreement. During any calendar year, the Borrower shall procure one appraisal in addition to those required by the preceding sentence of this Clause 16.8, if the Agent or any Lender in good faith determines that current market or other conditions affecting the value of the Vessels (or any of them) merit the delivery of such appraisal and the Agent so notifies the Borrower. Any additional valuation which the Agent or any Lender requires, shall be undertaken at the Agent's or such Lender’s expense. |
16.9 | Intentionally omitted. |
16.10 | Application of prepayment. Clause 5.10 shall apply in relation to any prepayment pursuant to Clause 16.2(b). |
17 | PAYMENTS AND CALCULATIONS |
17.1 | Payment on non-Business Day. If any payment by the Borrower under a Finance Document would otherwise fall due on a day which is not a Business Day: |
(a) | the due date shall be extended to the next succeeding Business Day; or |
(b) | if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day; |
17.2 | Basis for calculation of periodic payments. All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year. |
(a) | any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, or the Security Trustee shall be made available by the Agent to that Lender, or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender and or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and |
(b) | amounts to be applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it. |
17.4 | Permitted deductions by Agent. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand. |
17.5 | Agent only obliged to pay when monies received. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrower or any Lender any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender until the Agent has satisfied itself that it has received that sum. |
17.6 | Refund to Agent of monies not received. If and to the extent that the Agent makes available a sum to the Borrower or a Lender, without first having received that sum, the Borrower or (as the case may be) the Lender concerned shall, on demand: |
(a) | refund the sum in full to the Agent; and |
(b) | pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it. |
17.7 | Agent may assume receipt. Clause 17.6 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available. |
17.8 | Agent's memorandum account. The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrower and each Obligor under the Finance Documents and all payments in respect of those amounts made by the Borrower and any Obligor. |
17.9 | Accounts prima facie evidence. If any accounts maintained under Clause 17.8 show an amount to be owing by the Borrower or an Obligor to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party. |
18 | APPLICATION OF RECEIPTS |
18.1 | Normal order of application. Any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document after service of notice on the Borrower under Clause 19.2 shall be applied: |
(a) | FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions: |
(i) | first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents other than those amounts referred to at paragraphs (ii) and (iii) (including, but without limitation, all amounts payable by the Borrower under Clauses 20 and 21 of this Agreement or by the Borrower or any Obligor under any corresponding or similar provision in any other Finance Document); |
(ii) | secondly, in or towards satisfaction pro rata of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents; and |
(iii) | thirdly, in or towards satisfaction pro rata of the Loans; |
(b) | SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Obligors and the other Creditor Parties, states in its reasonable opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of sub-paragraph (a); and |
(c) | THIRDLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it. |
18.2 | Appropriation rights overridden. This Clause 18 shall override any right of appropriation possessed, and any appropriation made, by the Borrower or any Obligor provided such variation does not change the overall amount being applied. |
19 | EVENTS OF DEFAULT AND ACCELERATION |
19.1 | Events of Default. No Drawing under this Agreement may be requested from the Lenders and the Agent may, and if instructed by the Majority Lenders shall, terminate the Commitments of the Lenders and all of their obligations towards the Borrower and/or require immediate payment of the full amount of the Loan, all accrued interest and all other amounts accrued or owing under or in connection with this Agreement, if any one of the following Events of Default occurs and is continuing: |
(a) | Non-payment in respect of repayment of any Loan or payment of interest on any Loan: the Borrower is in default in the repayment of any sum due in respect of any Loan or any part thereof under Clause 5 and/or in respect of any payment of interest due under Clause 6 when and as the same shall become due and payable as therein and herein provided and such default shall continue for five (5) Business Days after the due date; |
(b) | Non-payment of other amounts: an Obligor is in default in the payment of any other amounts payable under this Agreement or any other Finance Document and such default shall not have been cured within five (5) Business Days from the receipt of a demand for payment from the Agent; |
(c) | Other obligations under this Agreement: any Obligor fails to perform any of its obligations (other than those referred to elsewhere in this Clause 19) under this Agreement and (if such failure is capable of remedy) such failure remains unremedied thirty (30) Business Days after the Borrower has received notice of such failure; |
(d) | Other Finance Documents : (i) at any time after the execution and delivery thereof, any of the other Finance Documents shall cease to be in full force and effect, or shall cease in any material respect to give the Security Trustee or the Agent, as applicable, the Security Interests, rights, powers and privileges purported to be created thereby, in favour of the Security Trustee or the Agent, as applicable, superior to and prior to the rights of all third Persons (except in connection with Permitted Security Interests), and subject to no other Security Interests (except Permitted Security Interests), or (ii) following the expiry of any applicable grace period, an “event of default” (as defined in any Mortgage) shall have occurred under any Mortgage, or (iii) any Obligor shall have defaulted in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any of the Security Documents (other than the Mortgages) and (in the case of clause (iii) only) (if such default is capable of remedy) such default remains unremedied for ten (10) days after the relevant Obligor has received notice of such default; |
(e) | Financial Indebtedness: any of the following occurs in relation to any Financial Indebtedness of any Obligor (in relation to the Borrower only, which Financial Indebtedness exceeds $5,000,000): |
(i) | any of its Financial Indebtedness is not paid when due or, if so payable, on demand; |
(ii) | any of its Financial Indebtedness becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; |
(iii) | a lease, hire purchase agreement or charter creating any of its Financial Indebtedness is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; |
(iv) | any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any of its Financial Indebtedness ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or |
(v) | any Security Interest securing any of its Financial Indebtedness becomes unenforceable; |
(f) | Insolvency proceedings: any of the following occurs in relation to any Obligor: |
(i) | it becomes unable to pay its debts as they fall due within the meaning of section 123(1)(e) of the Insolvency Act 1986; |
(ii) | a winding-up or administration order is made in any jurisdiction; |
(iii) | any administrative or other receiver is appointed over any of its assets; |
(iv) | it makes any formal declaration of bankruptcy or any formal statement to the effect that it is insolvent or likely to become insolvent, or a winding up or administration order is made in relation to it, or its members or directors pass a resolution to the effect that it should be wound up, placed in administration or cease to carry on business, save that this paragraph does not apply to a fully solvent winding up of any Obligor other than the Borrower or any Guarantor which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later than 3 months after the commencement of the winding up; |
(v) | a petition is presented in any Pertinent Jurisdiction for the winding up or administration, or the appointment of a provisional liquidator, of any Obligor unless the petition is being contested in good faith and on substantial grounds and is dismissed or withdrawn within 60 days of the presentation of the petition; |
(vi) | any Obligor petitions a court, or presents any proposal for, any form of judicial or non‑judicial suspension or deferral of payments, reorganisation of its debt (or certain of its debt) or arrangement with all or a substantial proportion (by number or value) of its creditors or of any class of them or any such suspension or deferral of payments, reorganisation or arrangement is effected by court order, contract or otherwise; |
(vii) | any meeting of the members or directors of any Obligor is summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iii), (iv), (v) or (vi); or |
(viii) | in a Pertinent Jurisdiction other than England, any event occurs or any procedure is commenced which is similar to any of the foregoing; |
(g) | Corporate modification : without the prior consent of the Majority Lenders, there is a merger, splitting-up or dissolution of any Obligor not otherwise permitted under this Agreement, or transfer of the registered office of any Obligor to another country, or a modification of the corporate purpose or the corporate form of any Obligor; |
(h) | Incorrect or misleading representation or warranty: any representation, warranty or statement made by, or by an officer of any Obligor in a Finance Document or in a Drawdown Notice or other notice or document relating to a Finance Document shall have been incorrect or misleading when made in any material respect; |
(i) | Cessation of business; disposal of assets: any Obligor ceases to carry on business or disposes of all or substantially all of its business, property and/or assets; |
(j) | Governmental measures or other impediment: (i) any governmental measure or decision, whether applying generally or solely to an Obligor or any Vessel is taken in the jurisdiction of incorporation of the relevant Obligor or any other country from or through which payments hereunder are made by the relevant Obligor or (ii) any other event occurs in the jurisdiction of the relevant Obligor or any other country from or through which payments hereunder are made by the relevant Obligor which, in either case, might reasonably be expected to impede the performance of this Agreement by any Obligor; |
(k) | Illegality: it becomes unlawful in any Pertinent Jurisdiction or impossible: |
(i) | for any Obligor to discharge any liability under a Transaction Document or to comply with any other obligation which the Majority Lenders consider material under a Transaction Document; or |
(ii) | for the Agent, the Security Trustee or any of the Lenders to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; |
(l) | Absence of consents: any official consent necessary to enable the relevant Guarantor to own, lease or charter its Vessel or to enable any Obligor to comply with any provision of any Transaction Document which is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; |
(m) | Invalidity, unenforceability of Transaction Documents or Security Interests: any material provision proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Transaction Document proves to have been or becomes invalid or unenforceable; |
(n) | Repudiation and rescission of agreements: any party (other than the Agent, the Security Trustee or a Lender) to a Transaction Document (other than the Charters) rescinds or purports to rescind or repudiates or purports to repudiate that Transaction Document or any of the Security Interests or evidences an intention to rescind or repudiate a Transaction Document or any Security Interest or amends a Transaction Document (without the consent of the Majority Lenders) where to do so has or is likely to have a Material Adverse Effect on the interests of the Creditor Parties under the Finance Documents; |
(o) | Security imperilled: the security constituted by a Finance Document is in any way imperilled or in jeopardy; |
(p) | Early termination of Charter : the early termination of any Charter where no alternative employment for the relevant Vessel is found within 30 days of such termination; |
(q) | ERISA. Any Plan shall fail to satisfy the minimum funding standard required for any plan year or part thereof under Section 412 of the Code or Section 302 of ERISA or a waiver of or variance from such standard is sought or granted under Section 412 of the Code or Section 302 of ERISA, a Reportable Event shall have occurred, a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with respect to such Plan within the following 30 days, any Plan which is subject to Title IV of ERISA shall have had or is reasonably likely to have a trustee appointed to administer such Plan, any Plan which is subject to Title IV of ERISA is, shall have been or is reasonably likely to be terminated or to be the subject of termination proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a contribution required to be made with respect to a Plan or a Foreign Pension Plan is not timely made, the Borrower or any of its Subsidiaries or any ERISA Affiliate has incurred or events have happened, or reasonably expected to happen, that will cause it to incur any liability to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or the Borrower, or any of its Subsidiaries, has incurred or is reasonably likely to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that provide benefits to retired employees or other former employees (other than as required by Section 601 of ERISA) or Plans or Foreign Pension Plans; (b) there shall result from any such event or events the imposition of a lien, the granting of a security interest, or a liability or a material risk of incurring a liability; and (c) such lien, security interest or liability, either individually and/or in the aggregate, in the reasonable opinion of the Required Lenders, has had, or could reasonably be expected to have, a Material Adverse Effect; |
(r) | Insurance: any Insurance is not, or ceases to be, maintained in full force and effect or is unavailable or unobtainable or any of the provisions of paragraphs (b), (c), (d), (e), (i), (j), (k), (l), (m) or (n) of Clause 14 are not complied with; or |
(s) | Material adverse change: any event occurs or any other circumstances arise or develop which might in the reasonable opinion of the Majority Lenders, result in a material adverse change in the financial condition of any Obligor. |
19.2 | Notice of Event of Default or acceleration of the Loan . Notice of any Event of Default and/or acceleration of the Loan shall be given by the Agent to the Borrower in accordance with Clause 27. |
19.3 | Other action by Agent. The Agent may, and if so instructed by the Majority Lenders shall, take any other action which, as a result of the Event of Default or any notice served under Clause 19.2, any Creditor Party is entitled to take under any Finance Document or any applicable law. |
19.4 | Other action by Security Trustee. The Security Trustee may, and if so instructed by the Majority Lenders shall, take any other action which, as a result of the Event of Default or any |
19.5 | Termination of Commitments. On the service of a notice under Clause 19.2, the Commitments and all other obligations of each Lender to the Obligors under this Agreement shall terminate. |
19.6 | Acceleration of Loan. On the service of a notice under Clause 19.2, the Loans, all accrued interest and all other amounts accrued or owing from the Obligors or any other Obligor under this Agreement and every other Finance Document shall become immediately due and payable, or, as the case may be, payable on demand. |
19.7 | Delay in exercise of rights. In no event shall any delay in exercising any Creditor Party’s right to require advance repayment be interpreted as a waiver of this right. |
19.8 | Lenders’ rights unimpaired. Nothing in this Clause 19 shall be taken to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular, this Clause 19 is without prejudice to Clause 1.6 (a). |
19.9 | Exclusion of Creditor Party liability. No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to the Borrower or any Obligor: |
(a) | for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or |
(b) | as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset. |
19.10 | Interpretation. In Clause 19.1(e) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(f) “ petition ” includes an application. |
20 | FEES AND EXPENSES |
(a) | on the Amendment and Restatement Effective Date, an arrangement fee of 1.00% of the outstanding principal balance of the Loans on the Amendment and Restatement Effective Date, for distribution among the Lenders pro rata to their Loans; |
(b) | intentionally omitted; |
(c) | an agency fee in the amount and at the times agreed in the Fee Letter; and |
(d) | a structuring fee in the amount and at the time agreed in the Structuring Fee Letter. |
20.2 | Costs of negotiation, preparation etc. The Borrower shall pay to the Agent on its demand the amount of all reasonable expenses incurred by the Agent or the Security Trustee in connection with: |
(a) | the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document; and |
(b) | the registration, filing or discharge of the Finance Documents, including without limitation in each case the reasonable fees and expenses of legal advisers and insurance experts of the Agent or the Security Trustee, the cost of registration and discharge of Security Interests. |
20.3 | Costs of variations, amendments, enforcement etc. The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Creditor Party concerned, the amount of all reasonable expenses incurred by a Creditor Party in connection with: |
(a) | any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made; |
(b) | any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance Document, or any request for such a consent or waiver; |
(c) | the valuation of any security provided or offered under Clause 16 or any other matter relating to such security; and |
(d) | any step taken by the Lender concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose; |
20.4 | Extraordinary management time. The Borrower shall pay to the Agent on its demand compensation in respect of the reasonable and documented amount of time which the management of the Agent has spent in connection with a matter covered by Clause 20.3 and which exceeds the amount of time which would ordinarily be spent in the performance of the Agent’s routine functions. Any such compensation shall be based on such reasonable daily or hourly rates as the Agent may notify to the Borrower and is in addition to any fee paid or payable to the Agent. |
20.5 | Documentary taxes. The Borrower shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrower to pay such a tax. |
21 | TAXES; EXPENSES AND INDEMNITIES |
21.1 | Taxes. All present and/or future taxes, levies and duties whatsoever legally payable in connection with the Borrower’s repayment and interest payment liabilities under this Agreement (other than taxes payable by any Creditor Party on its overall net income) resulting from the signature or performance of this Agreement or any other Finance Document shall be paid by the Borrower. |
21.2 | No deductions or withholdings; gross-up. |
(a) | All repayments of and payments in respect of principal and interest on the Loans, interest on late payments, compensation, costs, fees, expenses and related charges, due in connection with this Agreement or any other Finance Document shall be made: |
(ii) | free and clear of any tax deduction except a tax deduction which the Borrower or any Guarantor is required by law to make; |
(b) | if the Borrower or any Guarantor is required by law to make a tax deduction from any payment: |
(i) | the Borrower or such Guarantor shall notify the Agent as soon as it becomes aware of the requirement; |
(ii) | the Borrower or such Guarantor shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and |
(iii) | the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received; |
(c) | within 1 (one) month after making any tax deduction under Clause 21.2(b) the Borrower shall deliver to the Agent documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority; and |
(d) | in this Clause 21.2 “tax deduction” means any deduction or withholding for or on account of any present or future tax except tax on a Creditor Party’s overall net income. |
21.3 | Indemnities regarding borrowing and repayment of the Loan. The Borrower shall fully indemnify each Creditor Party in the manner described in Clause 21.6 on its demand in respect of all claims, costs, expenses, liabilities and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party estimates reasonably and with due diligence that it will incur, subject to them being properly justified by that Creditor Party, as a result of or in connection with: |
(a) | any Drawing not being borrowed on the date specified in the relevant Drawdown Notice for any reason other than a default by the Lender claiming the indemnity; |
(b) | the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period; |
(c) | any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid on the amount concerned under Clause 8); |
(d) | the occurrence and/or continuance of an Event of Default and/or the acceleration of repayment of the Loan under Clause 19; and |
(e) | any tax (other than tax on its overall net income) for which a Creditor Party is liable in connection with any amount paid or payable to that Creditor Party (whether for its own account or otherwise) under any Finance Document. |
21.4 | Breakage costs. Without limiting its generality, Clause 21.3 covers any claim, cost, liability, expense or loss incurred by a Lender in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of the Loan and/or any overdue amount (or an aggregate amount which includes the Drawings or any overdue amount). |
21.5 | Currency indemnity. Dollars shall be the currency of account and of payment of all amounts due hereunder in all events. If any payment is made or received by a Creditor Party, including pursuant to any judgment or order rendered by a competent court or tribunal, in a currency |
21.6 | Miscellaneous indemnities. The Borrower shall fully indemnify each Creditor Party (including any officers, employees and agents of such Creditor Party) on its demand in respect of all claims, demands, proceedings, liabilities, taxes (other than taxes on the relevant Creditor Party’s overall net income), losses and expenses of every kind which may be made or brought against, or incurred by, a Creditor Party, in any country, subject to them being properly justified by the relevant Creditor Party, in relation to: |
(a) | any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party (or any of their respective representatives) under a Finance Document or in connection with the Cases; and |
(b) | any other event, matter or question which occurs or arises at any time during the term of this Agreement and which has any connection with, or any bearing on, any Finance Document, any payment or other transaction relating to (i) a Finance Document, (ii) the Cases or (iii) any asset covered (or previously covered) by any security interest created (or intended to be created) by a Finance Document; |
22 | ILLEGALITY, ETC |
22.1 | Illegality. This Clause 22 applies if a Lender (the “ Notifying Lender ”) notifies the Agent that it has become, or will with effect from a specified date, become: |
(a) | unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or |
(b) | contrary to, or inconsistent with, any regulation; |
22.2 | Notification of illegality. The Agent shall promptly notify the Obligors, the Security Trustee and the other Lenders of the notice under Clause 22.1 which the Agent receives from the Notifying Lender. |
22.3 | Prepayment; termination of Commitment. On the Agent notifying the Borrower under Clause 22.2, the Notifying Lender's Commitment shall terminate; and thereupon or, if later, on the date specified in the Notifying Lender's notice under Clause 22.1 as the date on which the notified event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance with Clause 5. |
22.4 | Mitigation . If circumstances arise which would result in a notification under Clause 22.1 then, without in any way limiting the rights of the Notifying Lender under Clause 22.3, the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial |
(a) | have an adverse effect on its business, operations or financial condition; |
(b) | involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or |
(c) | involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage. |
23 | INCREASED COSTS |
23.1 | Increased costs. This Clause 23 applies if a Lender (the “ Notifying Lender ”) notifies the Agent that the Notifying Lender considers that as a result of: |
(a) | the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Lender's overall net income); or |
(b) | complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement; |
23.2 | Meaning of “increased costs”. In this Clause 23, “increased costs” means, in relation to a Notifying Lender: |
(a) | an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or having taken an assignment of rights under this Agreement, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums; |
(b) | a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital; |
(c) | an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or |
(d) | a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement; |
23.3 | Notification to Borrower of claim for increased costs. The Agent shall promptly notify the Obligors of the notice which the Agent received from the Notifying Lender under Clause 23.1. |
23.4 | Payment of increased costs. The Borrower shall pay to the Agent, on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost. |
23.5 | Notice of prepayment. If the Borrower is not willing to continue to compensate the Notifying Lender for the increased cost under Clause 23.4, the Borrower may give the Agent not less than 14 days' notice of its intention to prepay the Notifying Lender's Contribution at the end of an Interest Period. |
23.6 | Prepayment; termination of Commitment. A notice under Clause 23.5 shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower's notice of intended prepayment and: |
(a) | on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and |
(b) | on the date specified in its notice of intended prepayment, the Borrower shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin. |
24 | SET‑OFF |
(a) | apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of any Guarantor at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from that Guarantor to that Creditor Party under any of the Finance Documents; and |
(b) | for that purpose: |
(i) | break, or alter the maturity of, all or any part of a deposit of any Guarantor; |
(ii) | convert or translate all or any part of a deposit or other credit balance into Dollars; and/or |
(iii) | enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate. |
24.2 | Existing rights unaffected. No Creditor Party shall be obliged to exercise any of its rights under Clause 24.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document). |
25 | TRANSFERS AND CHANGES IN LENDING OFFICES |
25.1 | Transfer by Borrower. Neither the Borrower nor any Guarantor may, without the consent of the Agent, given on the instructions of all the Lenders transfer any of its rights, liabilities or obligations under any Finance Document. |
25.2 | Transfer by a Lender. Subject to Clause 25.7, a Lender (the “ Transferor Lender ”) may at any time, without needing the consent of the Borrower or any Obligor, cause: |
(a) | its rights in respect of all or part of its Contribution; |
(b) | its obligations in respect of all or part of its Commitment; or |
(c) | a combination of (a) and (b); |
25.3 | Transfer Certificate, delivery and notification. As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective): |
(a) | sign the Transfer Certificate on behalf of itself, the Obligors, the Security Trustee and each of the other Lenders; |
(b) | on behalf of the Transferee Lender, send to the Borrower and each Obligor letters or faxes notifying them of the Transfer Certificate and attaching a copy of it; and |
(c) | send to the Transferee Lender copies of the letters or faxes sent under paragraph (b). |
25.4 | Effective Date of Transfer Certificate. A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date p rovided that it is signed by the Agent under Clause 25.3 on or before that date. |
25.5 | No transfer without Transfer Certificate. No assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Obligor, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate. |
25.6 | Lender re-organisation; waiver of Transfer Certificate. However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in a successor, the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender. |
25.7 | Effect of Transfer Certificate. A Transfer Certificate takes effect in accordance with English law as follows: |
(a) | to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the |
(b) | the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate; |
(c) | the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate; |
(d) | the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro‑rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them; |
(e) | any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of the Borrower or any Obligor against the Transferor Lender had not existed; |
(f) | the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 7.3 and Clause 19, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and |
(g) | in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount; |
25.8 | Maintenance of register of Lenders. During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 23.4) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least 3 Business Days prior notice. |
25.9 | Reliance on register of Lenders. The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents. |
25.10 | Authorisation of Agent to sign Transfer Certificates. The Borrower, the Security Trustee, and each Lender irrevocably authorises the Agent to sign Transfer Certificates on its behalf. |
25.11 | Registration fee. In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $3,500 from the Transferor Lender or (at the Agent's option) the Transferee Lender. |
25.12 | Sub-participation; subrogation assignment. A Lender may sub‑participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice to, the Borrower, any Obligor, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them. |
25.13 | Disclosure of information. A Lender may disclose to a potential Transferee Lender or sub‑participant any information which the Lender has received in relation to the Borrower, any Guarantor, any Obligor or their affairs under or in connection with any Finance Document, unless the information is clearly of a confidential nature. |
25.14 | Change of lending office. A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of: |
(a) | the date on which the Agent receives the notice; and |
(b) | the date, if any, specified in the notice as the date on which the change will come into effect. |
25.15 | Notification. On receiving such a notice, the Agent shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice. |
25.16 | Replacement of Reference Bank. If any Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 6 then, unless the Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect, the first‑mentioned Reference Bank's appointment shall cease to be effective. |
26 | VARIATIONS AND WAIVERS |
26.1 | Variations, waivers etc. by Majority Lenders. Subject to Clause 26.2, a document shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by fax or telex, by the Borrower, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which an Obligor is a party, by that Obligor. |
26.2 | Variations, waivers etc. requiring agreement of all Lenders. However, as regards the following, Clause 26.1 applies as if the words “by the Agent on behalf of the Majority Lenders” were replaced by the words “by or on behalf of every Lender”: |
(a) | a change in the Margin or in the definition of LIBOR; |
(b) | a change to the date for, the amount of, any payment of principal, interest, fees, or other sum payable under this Agreement; |
(c) | a change to any Lender's Commitment; |
(d) | an extension of Availability Period; |
(e) | a change to the definition of “Majority Lenders” or “Finance Documents”; |
(f) | a change to the preamble; |
(g) | a change to this Clause 26; |
(h) | any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; and |
(i) | any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required. |
26.3 | Exclusion of other or implied variations. Except for a document which satisfies the requirements of Clauses 26.1 and 26.2, no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising: |
(a) | a provision of this Agreement or another Finance Document; |
(b) | an Event of Default; |
(c) | a breach by the Borrower or an Obligor of an obligation under a Finance Document or the general law; or |
(d) | any right or remedy conferred by any Finance Document or by the general law; |
27 | NOTICES |
27.1 | General. Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter, fax or telex; and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly. |
27.2
|
Addresses for communications.
A notice shall be sent:
|
(a)
|
to the Borrower:
|
c/o Genco Shipping & Trading Limited
|
|
|
299 Park Avenue, 12th Floor,
|
|
|
New York, New York 10171
|
|
|
Fax No:+ 1 646 443 8551
|
|
|
|
(b)
|
to a Lender:
|
At the address below its name in Schedule 1
|
|
|
or (as the case may require) in the relevant Transfer Certificate.
|
|
|
|
(c)
|
to the Agent:
|
CA-CIB,
|
|
|
9 quai du Président Paul Doumer,
|
|
|
92920 Paris,
|
|
|
La Défense Cedex, France,
|
|
|
Fax: (+33) 1 41 89 29 87
|
|
|
Attn: Shipping Department
|
|
Copy to:
|
CA-CIB, New York Ship Finance,
|
|
|
1301 Avenue of the Americas,
|
|
|
New York, NY 10019
|
|
|
Attn: Jerome Duval (jerome.duval@ca-cib.com)
|
|
|
Michael Choina (michael.choina@ca-cib.com)
|
|
|
|
(d)
|
to the Security Trustee:
|
CA-CIB,
|
|
|
9 quai du Président Paul Doumer,
|
|
|
92920 Paris, La Défense Cedex,
|
|
|
France,
|
|
|
Fax: (+33) 1 41 89 29 87,
|
|
|
Attn: Shipping Department,
|
|
Copy to:
|
CA-CIB, New York Ship Finance,
|
|
|
1301 Avenue of the Americas,
|
|
|
New York, NY 10019
|
|
|
Attn: Jerome Duval (jerome.duval@ca-cib.com)
|
|
|
Michael Choina (michael.choina@ca-cib.com)
|
|
|
|
(e)
|
to any Guarantor
|
c/o Genco Shipping & Trading Limited
|
|
|
299 Park Avenue, 20th Floor,
|
|
|
New York, New York 10171,
|
|
|
United States
|
|
|
Fax No:+ 1646 443 8551
|
(a) | a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered; and |
(b) | a notice which is sent by telex or fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed. |
27.4 | Service outside business hours. However, if under Clause 27.3 a notice would be deemed to be served: |
(a) | on a day which is not a Business Day in the place of receipt; or |
(b) | on such a Business Day, but after 5 p.m. local time; |
27.5 | Illegible notices. Clauses 27.3 and 27.4 do not apply if the recipient of a notice notifies the sender within 1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect. |
27.6 | Valid notices. A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if: |
(a) | the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or |
(b) | in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been. |
27.7 | English language. Any notice under or in connection with a Finance Document shall be in English. |
27.8 | Meaning of “notice”. In this Clause 27, “ notice ” includes any demand, consent, authorisation, approval, instruction, waiver or other communication. |
28 | SUPPLEMENTAL |
28.1 | Rights cumulative, non-exclusive. The rights and remedies which the Finance Documents give to each Creditor Party are: |
(a) | cumulative; |
(b) | may be exercised as often as appears expedient; and |
(c) | shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law. |
28.2 | Severability of provisions. If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document. |
28.4 | Third party rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. |
28.5 | Effectiveness. This amendment and restatement of the Prepetition Loan Agreement shall become effective on the date (the “ Amendment and Restatement Effective Date” ) on which the conditions set forth in Clause 4.1 shall all be either satisfied or waived and the Borrower, the Agent, the Security Trustee, each of the Lenders who are party to the Prepetition Loan Agreement on the Amendment and Restatement Effective Date and each Obligor shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Agent in accordance with Clause 27. The Agent will give the Borrower and each Lender prompt written notice of the occurrence of the Amendment and Restatement Effective Date. |
28.6 | USA PATRIOT Act Notice . Each Lender hereby notifies each Creditor Party that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub: 107-56 (signed into law October 26, 2001)) (the “ PATRIOT Act ”), it is required to obtain, verify, and record information that identifies each Creditor Party, which information includes the name of each Creditor Party and other information that will allow such Lender to identify each Creditor Party in accordance with the PATRIOT Act, and each Creditor Party agrees to provide such information from time to time to any Lender. |
29 | LAW AND JURISDICTION |
29.1 | English law. This Agreement shall be governed by, and construed in accordance with, English law. |
29.2 | Exclusive English jurisdiction. Subject to Clause 29.3, the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. |
29.3 | Choice of forum for the exclusive benefit of Creditor Parties. Clause 29.2 is for the exclusive benefit of the Creditor Parties, each of which reserves the rights: |
(a) | to commence proceedings in relation to any matter which arises out of or in connection with this Agreement in the courts of any country other than England and which have or claim jurisdiction to that matter; and |
(b) | to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England; |
29.4 | Process agent. The Borrower and each Guarantor irrevocably appoints WFW Legal Services Limited at its registered office for the time being, presently at 15 Appold Street, London EC2A 2HB, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with this Agreement. |
29.5 | Creditor Party rights unaffected. Nothing in this Clause 29 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. |
29.6 | Meaning of “proceedings”. In this Clause 29, “ proceedings ” means proceedings of any kind, including an application for a provisional or protective measure. |
Lender
|
Lending Office
|
Tranche A
Commitment
|
Tranche B
Commitment
|
Tranche C
Commitment
|
Tranche D
Commitment
|
Tranche E
Commitment
|
Crédit Agricole Corporate and Investment Bank 9 quai du Président Paul Doumer
92920 Paris La Défense
France
|
Paris
|
6,666,666.68
|
6,666,666.68
|
6,666,666.68
|
6,666,666.68
|
6,666,666.68
|
Crédit Industriel et Commercial
520 Madison Avenue, New York, NY 10022
|
New York
|
6,666,666.66
|
6,666,666.66
|
6,666,666.66
|
6,666,666.66
|
6,666,666.66
|
Skandinaviska Enskilda Banken AB (publ)
Kungsträdgårdsgatan 8
SE-106 40 Stockholm
|
Stockholm
|
6,666,666.66
|
6,666,666.66
|
6,666,666.66
|
6,666,666.66
|
6,666,666.66
|
1 | We refer to the amended and restated loan agreement (the “ Loan Agreement ”) dated July 9, 2014 and made between, among others, ourselves as the Borrower, the Guarantors (listed in Schedule 2 therein), Crédit Agricole Corporate and Investment Bank, Agent and Security Trustee and the banks and financial institutions listed therein as Lenders in connection with a loan facility in the maximum amount of US $100,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice. |
2 | We request to borrow a Drawing as follows: |
(a) | Tranche: [ l ] |
(b) | Amount: US$ [ l ]; |
(c) | Vessel: [ l ]; |
(d) | Guarantor: [ l ] |
(e) | Drawdown Date: [ l ]; |
(f) | Duration of the first Interest Period shall be [ l ] months; |
(g) | Payment instructions: [ l ]. |
3 | We represent and warrant that: |
(a) | the representations and warranties in Clause 11 which are repeated pursuant to Clause 11.4 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances now existing; and |
(b) | no Event of Default or Potential Event of Default has occurred or will result from the borrowing of the Drawing. |
4 | This notice cannot be revoked. |
|
Tranche A - Genco Bay
|
||
|
Calendar Quarter
|
Outstanding
|
Repayment
|
2/18/2014
|
0
|
$13,852,347
|
|
6/30/2014
|
1
|
$13,467,732
|
$384,615
|
9/30/2014
|
2
|
$13,083,117
|
$384,615
|
12/31/2014
|
3
|
$12,698,502
|
$384,615
|
3/31/2015
|
4
|
$12,313,887
|
$384,615
|
6/30/2015
|
5
|
$11,929,272
|
$384,615
|
9/30/2015
|
6
|
$11,544,657
|
$384,615
|
12/31/2015
|
7
|
$11,160,042
|
$384,615
|
3/31/2016
|
8
|
$10,775,427
|
$384,615
|
6/30/2016
|
9
|
$10,390,812
|
$384,615
|
9/30/2016
|
10
|
$10,006,197
|
$384,615
|
12/31/2016
|
11
|
$9,621,582
|
$384,615
|
3/31/2017
|
12
|
$9,236,967
|
$384,615
|
6/30/2017
|
13
|
$8,852,352
|
$384,615
|
9/30/2017
|
14
|
$8,467,737
|
$384,615
|
12/31/2017
|
15
|
$8,083,122
|
$384,615
|
3/31/2018
|
16
|
$7,698,507
|
$384,615
|
6/30/2018
|
17
|
$7,313,892
|
$384,615
|
9/30/2018
|
18
|
$6,929,277
|
$384,615
|
12/31/2018
|
19
|
$6,544,662
|
$384,615
|
3/31/2019
|
20
|
$6,160,047
|
$384,615
|
6/30/2019
|
21
|
$5,775,432
|
$384,615
|
8/31/2019
|
22
|
$0
|
$5,775,432
|
|
|
|
|
|
Tranche B - Genco Ocean
|
||
|
Calendar Quarter
|
Outstanding
|
Repayment
|
2/18/2014
|
0
|
$13,827,263
|
|
6/30/2014
|
1
|
$13,442,648
|
$384,615
|
9/30/2014
|
2
|
$13,058,033
|
$384,615
|
12/31/2014
|
3
|
$12,673,418
|
$384,615
|
3/31/2015
|
4
|
$12,288,803
|
$384,615
|
6/30/2015
|
5
|
$11,904,188
|
$384,615
|
9/30/2015
|
6
|
$11,519,573
|
$384,615
|
12/31/2015
|
7
|
$11,134,958
|
$384,615
|
3/31/2016
|
8
|
$10,750,343
|
$384,615
|
6/30/2016
|
9
|
$10,365,728
|
$384,615
|
9/30/2016
|
10
|
$9,981,113
|
$384,615
|
12/31/2016
|
11
|
$9,596,498
|
$384,615
|
3/31/2017
|
12
|
$9,211,883
|
$384,615
|
6/30/2017
|
13
|
$8,827,268
|
$384,615
|
9/30/2017
|
14
|
$8,442,653
|
$384,615
|
12/31/2017
|
15
|
$8,058,038
|
$384,615
|
3/31/2018
|
16
|
$7,673,423
|
$384,615
|
6/30/2018
|
17
|
$7,288,808
|
$384,615
|
9/30/2018
|
18
|
$6,904,193
|
$384,615
|
12/31/2018
|
19
|
$6,519,578
|
$384,615
|
3/31/2019
|
20
|
$6,134,963
|
$384,615
|
6/30/2019
|
21
|
$5,750,348
|
$384,615
|
8/31/2019
|
22
|
$0
|
$5,750,348
|
|
|
|
|
|
Tranche C - Genco Avra
|
||
|
Calendar Quarter
|
Outstanding
|
Repayment
|
2/18/2014
|
0
|
$14,945,228
|
|
6/30/2014
|
1
|
$14,560,613
|
$384,615
|
9/30/2014
|
2
|
$14,175,998
|
$384,615
|
12/31/2014
|
3
|
$13,791,383
|
$384,615
|
3/31/2015
|
4
|
$13,406,768
|
$384,615
|
6/30/2015
|
5
|
$13,022,153
|
$384,615
|
9/30/2015
|
6
|
$12,637,538
|
$384,615
|
12/31/2015
|
7
|
$12,252,923
|
$384,615
|
3/31/2016
|
8
|
$11,868,308
|
$384,615
|
6/30/2016
|
9
|
$11,483,693
|
$384,615
|
9/30/2016
|
10
|
$11,099,078
|
$384,615
|
12/31/2016
|
11
|
$10,714,463
|
$384,615
|
3/31/2017
|
12
|
$10,329,848
|
$384,615
|
6/30/2017
|
13
|
$9,945,233
|
$384,615
|
9/30/2017
|
14
|
$9,560,618
|
$384,615
|
12/31/2017
|
15
|
$9,176,003
|
$384,615
|
3/31/2018
|
16
|
$8,791,388
|
$384,615
|
6/30/2018
|
17
|
$8,406,773
|
$384,615
|
9/30/2018
|
18
|
$8,022,158
|
$384,615
|
12/31/2018
|
19
|
$7,637,543
|
$384,615
|
3/31/2019
|
20
|
$7,252,928
|
$384,615
|
6/30/2019
|
21
|
$6,868,313
|
$384,615
|
8/31/2019
|
22
|
$0
|
$6,868,313
|
|
|
|
|
|
Tranche D - Genco Mare
|
||
|
Calendar Quarter
|
Outstanding
|
Repayment
|
2/18/2014
|
0
|
$15,227,763
|
|
6/30/2014
|
1
|
$14,843,148
|
$384,615
|
9/30/2014
|
2
|
$14,458,533
|
$384,615
|
12/31/2014
|
3
|
$14,073,918
|
$384,615
|
3/31/2015
|
4
|
$13,689,303
|
$384,615
|
6/30/2015
|
5
|
$13,304,688
|
$384,615
|
9/30/2015
|
6
|
$12,920,073
|
$384,615
|
12/31/2015
|
7
|
$12,535,458
|
$384,615
|
3/31/2016
|
8
|
$12,150,843
|
$384,615
|
6/30/2016
|
9
|
$11,766,228
|
$384,615
|
9/30/2016
|
10
|
$11,381,613
|
$384,615
|
12/31/2016
|
11
|
$10,996,998
|
$384,615
|
3/31/2017
|
12
|
$10,612,383
|
$384,615
|
6/30/2017
|
13
|
$10,227,768
|
$384,615
|
9/30/2017
|
14
|
$9,843,153
|
$384,615
|
12/31/2017
|
15
|
$9,458,538
|
$384,615
|
3/31/2018
|
16
|
$9,073,923
|
$384,615
|
6/30/2018
|
17
|
$8,689,308
|
$384,615
|
9/30/2018
|
18
|
$8,304,693
|
$384,615
|
12/31/2018
|
19
|
$7,920,078
|
$384,615
|
3/31/2019
|
20
|
$7,535,463
|
$384,615
|
6/30/2019
|
21
|
$7,150,848
|
$384,615
|
8/31/2019
|
22
|
$0
|
$7,150,848
|
|
|
|
|
|
Tranche E - Genco Spirit
|
||
|
Calendar Quarter
|
Outstanding
|
Repayment
|
2/18/2014
|
0
|
$15,708,532
|
|
6/30/2014
|
1
|
$15,323,917
|
$384,615
|
9/30/2014
|
2
|
$14,939,302
|
$384,615
|
12/31/2014
|
3
|
$14,554,687
|
$384,615
|
3/31/2015
|
4
|
$14,170,072
|
$384,615
|
6/30/2015
|
5
|
$13,785,457
|
$384,615
|
9/30/2015
|
6
|
$13,400,842
|
$384,615
|
12/31/2015
|
7
|
$13,016,227
|
$384,615
|
3/31/2016
|
8
|
$12,631,612
|
$384,615
|
6/30/2016
|
9
|
$12,246,997
|
$384,615
|
9/30/2016
|
10
|
$11,862,382
|
$384,615
|
12/31/2016
|
11
|
$11,477,767
|
$384,615
|
3/31/2017
|
12
|
$11,093,152
|
$384,615
|
6/30/2017
|
13
|
$10,708,537
|
$384,615
|
9/30/2017
|
14
|
$10,323,922
|
$384,615
|
12/31/2017
|
15
|
$9,939,307
|
$384,615
|
3/31/2018
|
16
|
$9,554,692
|
$384,615
|
6/30/2018
|
17
|
$9,170,077
|
$384,615
|
9/30/2018
|
18
|
$8,785,462
|
$384,615
|
12/31/2018
|
19
|
$8,400,847
|
$384,615
|
3/31/2019
|
20
|
$8,016,232
|
$384,615
|
6/30/2019
|
21
|
$7,631,617
|
$384,615
|
8/31/2019
|
22
|
$0
|
$7,631,617
|
To: | [ Name of Agent] for itself and for and on behalf of the Borrower, [each Obligor], the Security Trustee and each Lender as defined in the Loan Agreement referred to below. |
2 | In this Certificate, terms defined in the Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate and: |
3 | The effective date of this Certificate is [ l ] Provided that this Certificate shall not come into effect unless it is signed by the Agent on or before that date. |
4 | [The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Agreement and every other Finance Document in relation to [ l ] per cent. of its Contribution, which percentage represents $[ l ]. |
5 | [By virtue of this Certificate and Clause 25 of the Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[ l ]] [from [ l ] per cent. of its Commitment, which percentage represents $[ l ]] and the Transferee acquires a Commitment of $[ l ].] |
6 | The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 25 of the Agreement provides will become binding on it upon this Certificate taking effect. |
7 | The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 25 of the Agreement. |
(a) | warrants to the Transferee and each Relevant Party that: |
(i) | the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are required in connection with this transaction; and |
(ii) | this Certificate is valid and binding as regards the Transferor; |
(b) | warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4; and |
(c) | undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose. |
(a) | confirms that it has received a copy of the Agreement and each of the other Finance Documents; |
(b) | agrees that it will have no rights of recourse on any ground against either the Transferor, the Agent, the Security Trustee or any Lender in the event that: |
(i) | any of the Finance Documents prove to be invalid or ineffective; |
(ii) | the Borrower or any Obligor fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents; |
(iii) | it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Obligor under any of the Finance Documents; |
(c) | agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee or any Lender in the event that this Certificate proves to be invalid or ineffective; |
(d) | warrants to the Transferor and each Relevant Party that: |
(i) | it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and |
(ii) | that this Certificate is valid and binding as regards the Transferee; |
(e) | confirms the accuracy of the administrative details set out below regarding the Transferee. |
10 | The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees. |
11 | The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 9 as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded by it. |
[Name of Transferor]
|
[Name of Transferee]
|
|
|
By:
|
By:
|
|
|
Date:
|
Date:
|
|
|
AGENT
|
|
|
|
Signed for itself and for and on behalf of itself
|
|
as Agent and for every other Relevant Party
|
|
|
|
[Name of Agent]
|
|
|
|
By:
|
|
|
|
Date:
|
|
Name of Transferee:
|
|
Lending Office:
|
|
Contact Person
|
(Loan Administration Department):
|
|
Telephone:
|
|
Telex:
|
|
Fax:
|
|
Contact Person
|
(Credit Administration Department):
|
|
Telephone:
|
|
Telex:
|
|
Fax:
|
|
Account for payments:
|
Note : | This Transfer Certificate alone may not be sufficient to transfer a proportionate share of the Transferor's interest in the security constituted by the Finance Documents in the Transferor's or Transferee's jurisdiction. It is the responsibility of each Lender to ascertain whether any other documents are required for this purpose. |
12 | The Mandatory Cost is an addition to the interest rate to compensate the Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank. |
13 | On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the " Additional Cost Rate ") for each Lender in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the Loan) and will be expressed as a percentage rate per annum. |
14 | The Additional Cost Rate for any Lender lending from an office in the euro-zone will be the percentage notified by that Lender to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in the Loan) of complying with the minimum reserve requirements of the European Central Bank as a result of participating in the Loan from that office. |
15 | The Additional Cost Rate for any Lender lending from an office in the United Kingdom will be calculated by the Agent as follows: |
(a) | where the Loan is denominated in sterling: |
(b) | where the Loan is denominated in any currency other than sterling: |
B | is the percentage of eligible liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements; |
Y | is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an overdue amount, the additional rate of interest specified in Clause 8 ( Default interest )) payable for the relevant Interest Period on the Loan; |
S | is the percentage (if any) of eligible liabilities which that Lender is required from time to time to maintain as interest bearing special deposits with the Bank of England; |
Z | is the interest rate per annum payable by the Bank of England to that Lender on special deposits; and |
F | is the charge payable by that Lender to the Financial Services Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations or the equivalent provisions in any replacement regulations (with, for this purpose, the figure for the minimum amount in paragraph 2.02b or such equivalent provision deemed to be zero), expressed in pounds per £1 million of the fee base of that Lender. |
16 | For the purpose of this Schedule: |
(a) | " eligible liabilities " and " special deposits " have the meanings given to them at the time of application of the formula by the Bank of England; |
(b) | " fee base " has the meaning given to it in the Fees Regulations; |
(c) | " Fees Regulations " means the regulations governing periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits. |
17 | In the application of the formula B, Y, S and Z are included in the formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated as 0.5. x 15. Each rate calculated in accordance with the formula is, if necessary, rounded upward to four decimal places. |
18 | If a Lender does not supply the information required by the Agent to determine its Additional Cost Rate when requested to do so, the applicable Mandatory Cost shall be determined on the basis of the information supplied by the remaining Lenders. |
19 | If a change in circumstances has rendered, or will render, the formula inappropriate, the Agent shall notify the Borrower of the manner in which the Mandatory Cost will subsequently be calculated. The manner of calculation so notified by the Agent shall, in the absence of manifest error, be binding on the Borrower. |
20
|
I am the duly elected, qualified and acting Chief Financial Officer of the Company.
|
21 | I have reviewed and am familiar with the contents of this Certificate. I am providing this Certificate solely in my capacity as an officer of the Company. The matters set forth herein are true to the best of my knowledge after diligent inquiry. |
22 | I have reviewed the terms of the Loan Agreement and the other Finance Documents and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and financial condition of the Company during the accounting period covered by the financial statements attached hereto as ANNEX 1 (the “Financial Statements”). The Financial Statements have been prepared in accordance with the requirements of the Loan Agreement. |
23 | Attached hereto as ANNEX 2 are the computations showing (in reasonable detail) compliance with the covenants specified therein. All such computations are true and correct. |
24 | On the date hereof, the representations and warranties contained in the Loan Agreement and in the other Finance Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof, unless stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date. |
25 | [On the date hereof, no Default or Event of Default has occurred and is continuing.] 1 |
|
GENCO SHIPPING & TRADING LIMITED
|
||
|
By
|
1.
|
Consolidated Net Income Attributable to the Company for the Test Period.
|
|
$
|
|
|
Waived as per Amendment and Supplement No.2
|
|
|
2.
|
Provisions for taxes based on income for the Test Period.
|
|
$
|
|
|
|
|
|
3.
|
Consolidated interest expense for the Test Period.
|
|
$
|
|
|
|
|
|
4.
|
Amortization or write off of deferred financing costs to the extent deducted in determining Consolidated Net Income for the Test Period.
|
|
$
|
|
4.
|
Amortization or write-off of deferred financing costs to the extent deducted in determining Consolidated Net Income for the Test Period.
|
|
$ |
5.
|
Depreciation expense of the Company and its Subsidiaries for the Test Period
|
|
$
|
|
|
|
|
|
6.
|
Amortization expense (including non-cash management
incentive compensation) of the Company and its Subsidiaries for the Test Period.
|
|
$ |
|
5.
|
Amortization expense of the Company and its Subsidiaries for the Test Period.
|
|
$
|
7.
|
Cash restructuring charges in connection with the Cases and the Plan of Reorganization
|
|
$
|
|
|
|
|
|
8.
|
Losses on sales of assets (excluding sales in the ordinary course of business) and other extraordinary losses for the Test Period. – Non-Cash Losses
|
|
$ |
|
|
|
|
|
9.
|
Gains on sales of assets (excluding sales in the ordinary course of business) and other extraordinary gains for the Test Period.
|
|
$ |
|
|
|
|
|
10.
|
(Gains)/Losses from Interest Rate Protection Agreements and other Hedging Agreements
|
|
$
|
|
|
|
|
|
11.
|
Consolidated EBITDA (sum of Items 1 through 8, and 10
minus
Item 9).
|
|
$
|
|
|
|
|
|
12.
|
Consolidated Interest Expense for the four immediately preceding fiscal quarters.
|
|
$
|
|
|
|
|
|
13.
|
Consolidated Interest Coverage Ratio (Item 11:Item 12).
|
|
|
|
|
|
|
|
14.
|
Minimum Interest Coverage Ratio on the Computation Date.
|
|
|
|
|
|
|
|
1.
|
Average Consolidated Net Indebtedness(*) on the Computation Date.
|
|
$
|
2.
|
Consolidated EBITDA on the Computation Date.
|
|
$
|
3.
|
Leverage Ratio (Item 1:Item 2) on the Computation Date.
|
|
|
4.
|
Maximum Leverage Ratio pursuant to Clause 12.2(d) of the Loan Agreement:
|
|
|
1.
|
Aggregate principal amount of outstanding Loans on the Computation Date.
|
$
|
|
2.
|
Aggregate Appraised Value on the Computation Date.
|
$
|
|
3.
|
Minimum permitted Aggregate Appraised Value (Item 1 multiplied by 1.30).
|
$
|
1.
|
Consolidated Net Worth on the Computation Date, must be greater than 75% of the Post-Reorganization Equity Value of the Company
plus
50% of the net proceeds received by the Company as a result of any new Equity Interests issued by the Company after the Amendment and Restatement Effective Date, as required pursuant to Clause 12.2(f) of the Loan Agreement.
|
|
$
|
1.
|
Amount of interest-bearing Consolidated Indebtedness
|
|
$
|
|
|
|
|
2.
|
Consolidated Net Worth (whereby the Consolidated Net Worth includes its Subsidiaries (including the Company’s investment in Baltic Trading Limited) determined on a consolidated basis in accordance to GAAP without any deduction for minority interests in Subsidiaries) and as amended through the Test Period.
|
|
$
|
|
|
|
|
3.
|
Amount of interest-bearing Consolidated Indebtedness plus Consolidated Net Worth (whereby the Consolidated Net Worth includes its Subsidiaries (including the Company’s investment in Baltic Trading Limited) determined on a consolidated basis in accordance to GAAP without any deduction for minority interests in Subsidiaries) (1. Plus 2.).
|
|
$
|
|
|
|
|
4.
|
Ratio of interest-bearing Consolidated Indebtedness to the aggregate of interest-bearing Consolidated Indebtedness plus Consolidated Net Worth (1.
divided by
3.)
|
|
|
|
|
|
|
5.
|
Requirement - Ratio of interest-bearing Consolidated Indebtedness to the aggregate of interest-bearing Consolidated Indebtedness plus Consolidated Net Worth cannot exceed 70%
|
|
|
BORROWER
|
|
|
||
|
|
|
||
SIGNED
by
|
)
|
/s/ John C. Wobensmith
|
||
for and on behalf of
|
)
|
John C. Wobensmith
|
||
GENCO SHIPPING
|
)
|
|
||
& TRADING LIMITED
|
)
|
Chief Financial Officer, Principal Accounting Officer and Secretary
|
||
)
|
||||
in the presence of
|
|
|||
Witness:
|
/s/ Alexander Traum |
|
|
|
Name: Alexander Traum | ||||
Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
GUARANTORS
|
|
|
||
|
|
|
||
SIGNED
by
|
)
|
/s/ John C. Wobensmith
|
||
for and on behalf of
|
)
|
John C. Wobensmith
|
||
GENCO BAY LIMITED
|
)
|
|
||
)
|
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
|
|||
in the presence of
|
)
|
|||
in the presence of
|
||||
Witness:
|
/s/ Alexander Traum |
|
|
|
Name: Alexander Traum
|
||||
Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
SIGNED
by
|
)
|
/s/ John C. Wobensmith
|
||
for and on behalf of
|
)
|
John C. Wobensmith
|
||
GENCO OCEAN LIMITED
|
)
|
|
||
)
|
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
|
|||
in the presence of
|
)
|
|||
in the presence of
|
||||
Witness:
|
/s/ Alexander Traum |
|
|
|
Name: Alexander Traum | ||||
Address: 1177 Avenue of the Americas, New York, NY 10036 |
SIGNED
by
|
)
|
/s/ John C. Wobensmith
|
||
for and on behalf of
|
)
|
John C. Wobensmith
|
||
GENCO AVRA LIMITED
|
)
|
|
||
)
|
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
|
|||
in the presence of
|
)
|
|||
in the presence of
|
||||
Witness:
|
/s/ Alexander Traum | |||
|
|
|
||
Name: Alexander Traum
|
||||
Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
SIGNED
by
|
)
|
/s/ John C. Wobensmith
|
||
for and on behalf of
|
)
|
John C. Wobensmith
|
||
GENCO MARE LIMITED
|
)
|
|
||
)
|
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
|
|||
in the presence of
|
)
|
|||
|
|
|
||
in the presence of | ||||
Witness:
|
/s/ Alexander Traum | |||
Name: Alexander Traum
|
||||
Address: 1177 Avenue of the Americas, New York, NY 10036 | ||||
SIGNED
by
|
)
|
/s/ John C. Wobensmith
|
||
for and on behalf of
|
)
|
John C. Wobensmith
|
||
GENCO SPIRIT LIMITED
|
)
|
|
||
)
|
Chief Financial Officer, Chief Accounting Officer, Secretary and Treasurer
|
|||
in the presence of
|
)
|
|||
in the presence of | ||||
Witness:
|
/s/ Alexander Traum | |||
|
|
|
||
Name: Alexander Traum
|
||||
Address: 1177 Avenue of the Americas, New York, NY 10036 |
LENDERS
|
|
|
||
SIGNED
by for and on behalf of
|
)
|
/s/ Michael Choina
|
/s/ Jerome Duval
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
Michael Choina
|
Jerome Duval
|
|
AND INVESTMENT BANK
|
)
|
Director
|
Managing Direcor
|
|
)
|
||||
in the presence of
|
)
|
|||
Witness:
|
/s/ Thomas Bullock
|
|||
Name:
Thomas Bullock
|
|
|
||
Address: 51 West 52
nd
Street New York, NY 10019
|
in the presence of
|
)
|
|||
Witness:
|
/s/ Thomas Bullock
|
|||
Name:
Thomas Bullock
|
|
|
||
Address: 51 West 52
nd
Street New York, NY 10019
|
SIGNED
by for and on behalf of
|
)
|
/s/ Andrew McKuin
|
/s/ Adrienne Molloy
|
|
Crédit Industriel
|
)
|
Andrew McKuin
|
Adrienne Molloy
|
|
et Commercial
|
)
|
Vice President
|
Vice President
|
|
)
|
||||
in the presence of
|
)
|
|||
Witness:
|
/s/ Maria Kaczorowski
|
/s/ Maria Kaczorowski
|
||
Name:
|
|
Maria Kaczorowski
|
Maria Kaczorowski
|
|
Address: |
520 Madison Avenue
New York, NY 10022
|
520 Madison Avenue
New York, NY 10022
|
SIGNED
by for and on behalf of
|
)
|
/s/ Micael Ljungren
|
/s/ Jan Dahl
é
n
|
|
Skandinaviska Enskilda
|
)
|
Michael Ljunggren
|
Jan Dajlén
|
|
Banken AB (publ)
|
)
|
|||
)
|
||||
in the presence of
|
)
|
|||
Witness:
|
/s/ Anne Geelmuyden
|
|||
Name:
Anne Geelmuyden
|
|
|
||
Address: Storgatan 11, 11444 Stockholm
|
AGENT
|
|
|
||
SIGNED
by for and on behalf of
|
)
|
/s/ Michael Choina
|
||
CRÉDIT AGRICOLE AND INVESTMENT
|
)
|
Michael Choina
|
||
BANK INVESTMENT BANK
|
)
|
Director
|
||
)
|
||||
in the presence of
|
)
|
|||
Witness:
|
/s/ Thomas Bullock
|
|||
Name:
Thomas Bullock
|
|
|
||
Address: 51 West 52
nd
Street New York, NY 10019
|
in the presence of
|
)
|
/s/ Jerome Duval
|
||
Witness:
|
/s/ Thomas Bullock
|
Jerome Duval
|
||
Name:
Thomas Bullock
|
|
Managing Director
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Address: 51 West 52
nd
Street New York, NY 10019
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SECURITY TRUSTEE
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SIGNED
by for and on behalf of
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)
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/s/ Michael Choina
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/s/ Jerome Duval
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CRÉDIT AGRICOLE CORPORATE AND
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)
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Michael Choina
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Jerome Duval
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INVESTMENT BANK
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)
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Director
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Managing Direcor
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)
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in the presence of
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)
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
nd
Street New York, NY 10019
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in the presence of
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)
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Witness:
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/s/ Thomas Bullock
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Name:
Thomas Bullock
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Address: 51 West 52
nd
Street New York, NY 10019
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GENGO SHIPPING & TRADING LIMITED
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By:
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/s/ John C. Wobensmith
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Name:
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John C. Wobensmith
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Title:
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Chief Financial Officer
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By: /s/ | Susanne V. Clark |
Name: | Susanne V. Clark |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Susanne V. Clark |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Susanne V. Clark |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Susanne V. Clark |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Susanne V. Clark |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Elizabeth Pierce |
Title: | VP Alden Global Capital LLC |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Elizabeth Pierce |
Title: | VP Alden Global Capital LLC |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Elizabeth Pierce |
Title: | VP Alden Global Capital LLC |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Elizabeth Pierce |
Title: | VP Alden Global Capital LLC |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Michael A. Gatto |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Michael A. Gatto |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Michael A. Gatto |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | William M. Kelly |
Title: | Authorized Signatory |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
By: | Onex Credit Partners, LLC, its investment manager |
Name: | Kevin Connors |
Title: | Portfolio Manager |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
By: | Onex Credit Partners, LLC, its manager |
Name: | Kevin Connors |
Title: | Portfolio Manager |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
By: | Phoenix Investment Adviser, LLC, its Investment Manager |
Name: | Jeff L. Peskind |
Title: | Chief Investment Officer |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
By: | Phoenix Investment Adviser, LLC, its Investment Manager |
Name: | Jeff. L. Peskind |
Title: | Chief Investment Officer |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | John D. Goedkoop |
Title: | Vice President |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Nicholas W. Walsh |
Title: | President |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Irvin Schussel |
Title: | Managing Partner |
þ | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Name: | Jonathan M. Barnes |
Title: | Vice President |
o | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
þ | By checking this box, the Holder signing above hereby requests the inclusion of __ 0 (zero) ___ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
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NON-DEMAND HOLDER
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x | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
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NON-DEMAND HOLDER
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x | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
x | By checking this box, the Holder signing above hereby requests the inclusion of all of his Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
x | By checking this box, the Holder signing above hereby requests the inclusion of all of its Registrable Securities in the Initial Shelf Registration Statement. |
o | By checking this box, the Holder signing above hereby requests the inclusion of _____________________ of its Registrable Securities in the Initial Shelf Registration Statement, constituting less than all of its Registrable Securities. |
Section 1.2
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Rules of Construction
Section 1.3
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Section 3.1
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Issuance of
Warrants
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Section 3.2
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Form of Warrant
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Section 3.3
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Execution of Warrant Certificates
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Section 3.4
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Registration and Countersignature
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Section 4.3
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Method of Exercise
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Section 4.4
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Issuance of
Common Stock
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Section 5.1
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Adjustments
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EP
1
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=
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the Exercise Price in effect immediately following the application of the adjustments in this
Section 5.1(b)
;
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EP
0
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=
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the Exercise Price in effect immediately prior to the application of the adjustments in this
Section 5.1(b)
;
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CP
0
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=
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the Closing Sale Price of the Common Stock on the last trading day preceding the first date on which the Common Stock trades regular way without the right to receive such distribution; and
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FV
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=
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the amount of cash and/or the fair market value of the securities,
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evidences of indebtedness, assets, rights or warrants to be so distributed in respect of one share of Common Stock, as determined by the Board of Directors of the Company, acting in good faith.
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EP
1
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=
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the Exercise Price in effect immediately following the application of the adjustments in this
Section 5.1(c)
(but in no event greater than EP
0
);
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EP
0
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=
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the Exercise Price in effect immediately prior to the application of the adjustments in this
Section 5.1(c)
;
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OS
0
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=
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the number of Fully Diluted shares of Common Stock outstanding immediately before consummation of such Pro Rata Repurchase Offer;
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CP
0
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=
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the Closing Sale Price of a share of Common Stock on the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such Pro Rata Repurchase Offer;
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AP
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=
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the aggregate purchase price (including the fair market value, as determined in good faith by the Board of Directors of the
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Company, of any non-cash consideration included therein) paid for the shares of Common Stock in the Pro Rata Repurchase Offer; and
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SP
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=
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the number of shares of Common Stock so repurchased in the Pro Rata Repurchase Offer.
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Section 6.1
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Registration of Transfers and Exchanges
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Section 6.2
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Obligations with Respect to Transfers and Exchanges of
Warrants
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Section 8.1
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Resignation, Consolidation or Merger of Warrant Agent
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Section 8.2
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Fees and Expenses of Warrant Agent
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Section 8.3
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Duties of Warrant Agent
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Section 9.7
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Amendments
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GENCO SHIPPING & TRADING LIMITED
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By:
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/s/ John C. Wobensmith
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Name: John C. Wobensmith
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Title: Chief Financial Officer
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COMPUTERSHARE INC., as Warrant Agent
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By:
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/s/ Michael Legregin
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Name: Michael Legregin
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Title: Manager
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* | Exercisable for 3,938,298 shares of Common Stock for all Warrants in the aggregate, subject to adjustment in accordance with Article V of the Warrant Agreement. |
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GENCO SHIPPING & TRADING LIMITED
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By:
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Print Name:
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Title:
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Attest:
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By:
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Name:
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Title:
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¤ | Exercisable for 3,938,298 shares of Common Stock for all Warrants in the aggregate, subject to adjustment in accordance with Article V of the Warrant Agreement. |
Certificate Number ________________
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Warrants ________________
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CUSIP ________________
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DATED
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Authorized Officer
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Attest:
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[Corporate seal]
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COUNTERSIGNED AND REGISTERED
COMPUTERSHARE INC,
WARRANT AGENT.
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Secretary
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By
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AUTHORIZED SIGNATURE
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represented by this Warrant Certificate to:
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Social Security or Other Taxpayer Identification Number
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Dated: _______ , 20__
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Signature: |
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Name:
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shares of Common Stock issuable upon exercise be registered as follows:
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Social Security or Other Taxpayer Identification Number
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Warrants represented hereby be issued and delivered as follows:
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Social Security or Other Taxpayer Identification Number
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Dated: _______ , 20__
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Signature: |
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Name:
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Signature(s) Guaranteed: Medallion Guarantee Stamp
THE SIGANTURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
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Number of Warrants:
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Number of Shares of Common Stock:
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(Total number of shares of Common Stock for which the Direct Registration Warrant is being exercised, before withholding for the Exercise Price.)
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Name:
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Address:
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Social Security or Other Taxpayer
Identification Number:
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Dated: ___________, 20____ | Signature: | |||
Name: |
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Signature(s) Guaranteed: Medallion Guarantee Stamp
THE SIGANTURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
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Number of Warrants:
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Number of Shares of Common Stock:
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(Total number of shares of Common Stock for which the Book-Entry Warrants are being exercised before withholding for the Exercise Price.)
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AUTHORIZED SIGNATURE:
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_____________________________
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NAME:
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_____________________________
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CAPACITY IN WHICH SIGNING:
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_____________________________
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DATED:
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_____________________________
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NAME OF PARTICIPANT:
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_____________________________
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ADDRESS:
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_____________________________
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CONTACT NAME (if different than above):
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_____________________________
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TELEPHONE (INCLUDING INTERNATIONAL CODE):
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_____________________________
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FAX (INCLUDING INTERNATIONAL CODE):
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_____________________________
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E-MAIL ADDRESS:
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_____________________________
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DEPOSITARY ACCOUNT NO.:
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_____________________________
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Name(s) of Assignee(s)
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Address of Assignee(s)
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Number of Warrants
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Dated: ___________, 20____ | Signature: | |||
Name: |
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Signature(s) Guaranteed: Medallion Guarantee Stamp
THE SIGANTURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
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