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Title: |
Senior Facility Agreement |
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Entities: |
International Swap Dealers Association Inc.; International Swaps & Derivatives Association, Inc. |
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Date: |
2000 |
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Size: |
Preview shows 26KB of 136KB total |
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Price: |
$44 |
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ID: |
#911029 |
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<DESCRIPTION>EXHIBIT 10.14
<TEXT>
<PAGE>
SENIOR FACILITY AGREEMENT
between
BOSS LTD.
STAVANGER SUN LTD.
as borrowers
CHRISTIANIA BANK OG KREDITKASSE ASA
as agent and security trustee
and
CHRISTIANIA BANK OG KREDITKASSE ASA
as lender
Clifford Chance
London
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
CLAUSE PAGE
<S> <C>
1. Interpretation ........................................................ 1
2. The Facility .......................................................... 8
3. Purpose ............................................................... 8
4. Conditions Precedent .................................................. 8
5. Nature of Rights and Obligations ...................................... 8
6. Availability .......................................................... 9
7. Interest Periods ...................................................... 10
8. Interest .............................................................. 11
9. Repayment and Prepayment .............................................. 11
10. Taxes and Tax Receipts ................................................ 13
11. Changes in Circumstances .............................................. 14
12. Representations ....................................................... 16
13. Information Covenants ................................................. 18
14. Financial Condition ................................................... 19
15. General Covenants ..................................................... 20
16. Events of Default ..................................................... 21
17. Default Interest and Indemnity ........................................ 24
18. Currency of Account and Payment ....................................... 26
19. Payments .............................................................. 26
20. Set-Off ............................................................... 26
21. Sharing ............................................................... 27
22. Fees .................................................................. 27
23. Costs and Expenses .................................................... 28
24. The Agent and the Banks ............................................... 29
25. Benefit of Agreement .................................................. 32
26. Assignments and Transfers ............................................. 33
27. Calculations and Evidence of Debt ..................................... 34
28. Remedies and Waivers .................................................. 35
29. Partial Invalidity .................................................... 35
30. Notices ............................................................... 35
31. Law ................................................................... 36
32. Jurisdiction .......................................................... 36
The First Schedule ........................................................ 38
Condition Precedent Documents ............................................. 38
The Second Schedule ....................................................... 41
Notice of Drawdown ........................................................ 41
The Third Schedule ........................................................ 42
Form of Transfer Certificate .............................................. 42
The Fourth Schedule ....................................................... 44
</TABLE>
<PAGE>
THIS AGREEMENT is made on 30 October 1997
BETWEEN:
(1) THE COMPANIES named in the Fourth Schedule (the "BORROWERS" and singly
a "BORROWER") acting jointly and severally;
(2) CHRISTIANIA BANK OG KREDITKASSE ASA (in its capacity as agent, the
"AGENT");
(3) CHRISTIANIA BANK OG KREDITKASSE ASA (in its capacity as the security
trustee, the "SECURITY TRUSTEE"); and
(4) CHRISTIANIA BANK OG KREDITKASSE ASA (the "INITIAL BANK").
RECITALS
A. The Initial Bank has agreed to grant to the Borrowers, upon the terms
and subject to the conditions herein set forth, a loan facility in the
amount of up to $30,000,000.
B. By a further loan facility agreement (the "JUNIOR FACILITY AGREEMENT")
of even date herewith and made between the Borrowers, the Agent, the
Security Trustee and Christiania Bank og Kreditkasse ASA as Initial
Bank, the Initial Bank has agreed to lend to the Borrowers a further
sum of up to $5,000,000 secured by second ranking security over the
assets mortgaged or charged by the Borrowers to the Security Trustee
pursuant to the Facility Documents defined therein.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ADMINISTRATIVE GENERAL PARTNER" means GMC Administration Ltd., a
company duly incorporated under the laws of the Cayman Islands.
"ADVANCE" means, save as otherwise provided herein, each of the
advances made or to be made by the Initial Bank hereunder;
"ASSIGNMENTS OF ACCOUNTS" means the assignment of each Borrower's bank
accounts to be executed by each Borrower in favour of the Security
Trustee pursuant to paragraph 3, of Part 2 of the First Schedule and
"ASSIGNMENT OF ACCOUNTS" means either of them;
"ASSIGNMENTS OF EARNINGS AND INSURANCES" means an assignment of
earnings and insurances to be entered into by each Borrower in favour
of the Security Trustee pursuant to paragraph 2 of Part 2 of the First
Schedule and "ASSIGNMENT OF EARNINGS AND INSURANCES" means either of
them;
"BANKS" means the Initial Bank and any Transferees of the Initial Bank
(and any subsequent
<PAGE>
Transferees) and "BANK" means each of the Banks;
"BASLE PAPER" means the paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988 and prepared
by the Basle Committee on Banking Regulations and Supervision, as
amended in November 1991;
"CAPITAL ADEQUACY REQUIREMENT" means a request or requirement relating
to the maintenance of capital, including one which makes any change to,
or is based on any alteration in, the interpretation of the Basle Paper
or which increases the amounts of capital required thereunder, other
than a request or requirement made by way of implementation of the
Basle Paper in the manner in which it is being implemented at the date
hereof;
"DRAWDOWN DATE" means in relation to each Advance the date on which
such Advance is made to the relevant Borrower in respect of the Vessel
being purchased by such Borrower;
"EARNINGS ACCOUNT" in relation to each Borrower has the meaning
ascribed to it in the Assignment of Earnings and Insurances to which
such Borrower is a party;
"EVENT OF DEFAULT" means any of those events specified in Clause 16.1
(EVENTS OF DEFAULT);
"FACILITY" means the dollar loan facility granted to the Borrowers in
this Agreement;
"FACILITY AMOUNT" means an amount of up to US$30,000,000 to be advanced
by the Initial Bank to the Borrowers;
"FACILITY OFFICE" means in relation to a Bank, the Agent or the
Security Trustee the office identified with its the signature below (or
in the case of a Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee) or such other office as it may from
time to time select;
"FACILITY DOCUMENTS" means this Agreement, the Senior Interest Rate
Swap Agreement, the Junior Interest Rate Swap Agreement, the Trust
Deed, the Mortgages, the Assignments of Earnings and Insurances entered
into by each Borrower, the Priority Agreement and the Assignments of
Accounts entered into by each Borrower and any other document agreed
between the Agent and the Borrowers to be a Facility Document and
"FACILITY DOCUMENT" means each of them;
"FAIR MARKET VALUE" means, in relation to each Vessel at any time, the
sale value of such Vessel in dollars determined on the basis of a sale
(for cash and prompt delivery) by a willing seller to a willing buyer,
free of charter and encumbrances and at arm's length on normal
commercial terms;
"FINAL REPAYMENT DATE" means in relation to both the first Advance and
the second Advance, the date which falls 60 months after the Drawdown
Date for the first Advance;
"GENERAL PARTNERS" means the Managing General Partner and the
Administrative General Partner and "GENERAL PARTNER" means each of
them;
<PAGE>
"INITIAL MANAGEMENT AGREEMENTS" means each of the agreements (as from
time to time amended or novated) to be entered into or entered into
between each respective Borrower and Det Stavangerske Damskipsselskap,
Norway relating to the management of the Vessel owned by such Borrower
pursuant to paragraph 9 Part 1 of the First Schedule commencing from
the relevant Drawdown Date;
"INSTRUCTING GROUP" means a Bank or group of Banks to whom in aggregate
more than fifty per cent of the Loan is (or, immediately prior to its
repayment, was then) owed;
"INTEREST PERIOD" means in relation to each Advance any of those
periods mentioned in Clause 7.2 (DURATION OF INTEREST PERIODS);
"JUNIOR INTEREST RATE SWAP AGREEMENT" means the International Swap
Dealers Association, Inc., Master Agreement together with a
confirmation letter dated on or about the date hereof entered into by
the Borrower, and the Initial Bank (as from time to time amended,
supplemented or extended by the parties thereunder) pursuant to which
the Borrower will hedge all or part of its interest costs under the
Junior Facility Agreement;
"LIBERIA" means the Republic of Liberia;
"LIBOR" means, in relation to any period for which an interest rate is
to be determined hereunder, the rate per annum determined by the Agent
to be equal to the LIBOR fixing on Telerate page 3740 for deposits in
dollars for a period corresponding to that period at 11.00 a.m. on the
Quotation Date for that period Provided that if there are no such rates
so appearing on such page at such time it means the rate per annum
determined by the Agent to be equal to the arithmetic mean (rounded
upwards, if not already such a multiple to the nearest whole multiple
of one-sixteenth of one per cent.) of the respective rates (as notified
to the Agent) at which the Reference Banks were offering to prime banks
in the London Interbank Market deposits in dollars for a period
corresponding to such period at such time;
"LOAN" means the aggregate principal amount for the time being
outstanding hereunder;
"MANAGING GENERAL PARTNER" means Genmar Boss Ltd. a company duly
incorporated under the laws of the State of New York, USA;
"MARGIN" means one and one-quarter per cent. (1-1/4%) per annum;
"MEMORANDUM OF AGREEMENTS" means each of the agreement dated 26
September 1997 (as from time to time amended or novated) made between
each respective Borrower and the Seller for the purchase and sale of
the Vessel to be purchased by each respective Borrower;
"MORTGAGES" means each of the Norwegian International Ship Mortgages to
be granted by Boss Ltd as the relevant Borrower over its Vessel and a
first preferred Liberian ship mortgage to be granted by Stavanger Sun
Ltd, as the relevant Borrower over its Vessel, to the Security Trustee
both pursuant to paragraph 1, Part 2 of the First Schedule and
"MORTGAGE" means any of them;
"NORWEGIAN INTERNATIONAL SHIP MORTGAGES" means the following Norwegian
International
<PAGE>
ship mortgages granted by Boss Ltd over its Vessel to secured (but not
limited to):
(i) the Facility Amount under the Senior Facility Agreement;
(ii) the maximum exposure amount of $900,000 under the Senior
Interest Rate Swap Agreement;
(iii) the Facility Amount under the Junior Facility Agreement; and
(iv) the maximum exposure amount of $250,000 under the Junior
Interest Rate Swap Agreement;
"NOTICE OF DRAWDOWN" means a notice in the form or substantially the
form of that set out in the Second Schedule;
"PERMITTED LIENS" has the meaning ascribed to it in the Assignment of
Earnings and Insurances;
"PRIORITY AGREEMENT" means the agreement between the Agent, the Banks,
the Borrowers and the Agent and the lenders under the Junior Facility
Agreement regulating the priorities and the rights of enforcement of
security between the Banks and the lenders under the Junior Facility
Agreement pursuant to paragraph 7 of Part 1 of the First Schedule;
"QUOTATION DATE" in relation to any period for which an interest rate
is to be determined hereunder means the day on which quotations would
ordinarily be given by prime banks in the London Interbank Market for
dollar deposits for delivery on the first day of that period Provided
that if, for any such period, quotations would ordinarily be given on
more than one date, the Quotation Date for that period shall be the
last of those dates;
"REFERENCE BANK" means the principal Oslo office of Christiania Bank og
Kreditkasse ASA and such other banks as may from time to time be agreed
between the Borrower and the Agent;
"REPAYMENT DATES" means in relation to each Advance, the days which
fall 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51,
54, 57 and 60 months after the Drawdown Date for such Advance, save for
the Final Repayment Date for the second Advance which shall fall on the
same date as the Final Repayment Date for the first Advance;
"RETENTION ACCOUNT" has the meaning ascribed to it in the Assignment of
Earnings and Insurances;
"SELLER" means in relation to each Vessel the party listed against the
name of such Vessel in the Fourth Schedule and "SELLERS" means both of
them;
"SENIOR INTEREST RATE SWAP AGREEMENT" means the International Swap
Dealers Association, Inc. Master Agreement together with a confirmation
letter both entered into by the Borrowers and the Initial Bank (as from
time to time amended, supplemented or extended by the parties
thereunder) pursuant to which the Borrowers will hedge all or part of
their
<PAGE>
interest costs under this Agreement;
"SHAREHOLDER" means Boss L.P., the sole shareholder of each Borrower;
"SUBSEQUENT MANAGEMENT AGREEMENTS" means each of the agreements (as
from time to time amended or novated) to be entered or entered into
between each respective Borrower and Universe Tankships (Bermuda) Ltd.
relating to the management of the Vessel owned by such Borrower
pursuant to paragraph 9, Part 1, of the First Schedule commencing upon
the termination of the Initial Management Agreement for such Vessel;
"TERMINATION DATE" means the earlier of 31 December 1997 and the date
on which the Facility Amount has been reduced to zero;
"TRANSFER CERTIFICATE" means a certificate in the form set out in the
Third Schedule (or such other form as may be agreed between the
relevant Bank, the proposed Transferee, the Agent and the Borrowers
pursuant to Clause 26.2 (ASSIGNMENTS AND TRANSFERS BY BANKS)) signed by
a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights and obligations hereunder
upon and subject to the terms and conditions set out in Clause
26.2 (ASSIGNMENTS AND TRANSFERS BY BANKS); and
(ii) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Borrowers as is contemplated in Clause 26.4 (TRANSFERS BY
BANKS)
"TRANSFER DATE" in relation to any Transfer Certificate means the date
for the making of the transfer as specified in the schedule to such
Transfer Certificate;
"TRANSFEREE" means a bank or other financial institution to which a
Bank seeks to transfer all or part of such Bank's rights and
obligations hereunder;
"TRUST DEED" means a security trust deed of the date hereof entered
into between the Security Trustee, the Agent, the Borrowers and the
Banks and the agent and lenders under the Junior Facility Agreement
pursuant to paragraph 4, Part 2 of the First Schedule;
"VESSEL" in relation to each Borrower means the vessel listed against
the name of such Borrower in Part 1 of the Fourth Schedule and
"VESSELS" means both of them;
1.2 Any reference in this Agreement to:
the Agent, the Security Trustee, or the Banks shall be construed so as
to include their respective successors, Transferees and permitted
assigns in accordance with their respective interests;
a "BUSINESS DAY" shall be construed as a reference to a day (other than
a Saturday or Sunday) on which banks are generally open for business in
Oslo, London and New York City;
<PAGE>
a "CHARTER" shall be construed as a reference to any agreement pursuant
to which either Vessel is, or will be, employed;
a "CLAUSE" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
an "ENCUMBRANCE" shall be construed as a reference to a mortgage,
charge, pledge, lien or other encumbrance securing any obligation of
any person or any other type of preferential arrangement (including,
without limitation, title transfer and retention arrangements) having a
similar effect;
the "EQUIVALENT" in one currency (in this paragraph the "FIRST
CURRENCY") of an amount denominated in another currency (in this
paragraph the "SECOND CURRENCY") on any date shall, save as otherwise
provided, be construed as a reference to the amount of the first
currency which could be purchased with that amount of the second
currency at the spot rate of exchange quoted by the Agent at or about
11.00 a.m. on such date for the purchase of the first currency with the
second currency for delivery on the second business day thereafter;
a "GUARANTEE" includes any guarantee, indemnity or other obligation to
pay, purchase, provide funds for the payment of or indemnify against
the consequences of default in the payment of indebtedness of any other
person and any encumbrance which secures the payment of any
indebtedness of any other person;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month save that, where any such period would otherwise end on
a day which is not a business day, it shall end on the next business
day, unless that day falls in the calendar month succeeding that in
which it would otherwise have ended, in which case it shall end on the
preceding business day Provided that, if a period starts on the last
business day in a calendar month or if there is no numerically
corresponding day in the month in which that period ends, that period
shall end on the last business day in that later month (and references
to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
a "SCHEDULE" shall, subject to any contrary indication, be construed as
a reference to a schedule hereto;
<PAGE>
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(i) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(ii) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(iii) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body;
"TAX" shall be construed so as to include any present or future tax,
levy, impost, duty or other charge of a similar nature (including,
without limitation, any penalty or interest payable in connection with
any failure to pay or any delay in paying any of the same);
"TOTAL LOSS" in relation to either Vessel includes any actual,
constructive, arranged, agreed or compromised total loss, any
requisitioning for title and the capture, seizure, arrest, detention,
or confiscation of such Vessel by any government, or by persons
purporting to act on behalf of any government, unless such Vessel be
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