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Title: |
Facility Agreement |
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Date: |
2005 |
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Preview shows 15KB of 92KB total |
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$52 |
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#962741 |
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DATED SEPTEMBER 2005
(1) BANCA POPOLARE ITALIANA SOCIETA COOPERATIVA, LONDON BRANCH
(2) NAVALMAR TRANSPORTES MARITIMOS LDA
FACILITY AGREEMENT
CONTENTS PAGE 1
<PAGE>
EXECUTION VERSION
REFERENCE
CONTENTS
CLAUSE
1 INTERPRETATION........................................................1
2 FACILITY..............................................................9
3 PURPOSE..............................................................10
4 CONDITIONS PRECEDENT.................................................10
5 UTILISATION..........................................................10
6 REPAYMENT AND PREPAYMENT.............................................11
7 INTEREST.............................................................13
8 TERMS................................................................14
9 MARKET DISRUPTION....................................................15
10 TAXES................................................................16
11 INCREASED COSTS......................................................18
12 MITIGATION...........................................................19
13 PAYMENTS.............................................................20
14 REPRESENTATIONS......................................................21
15 INFORMATION COVENANTS................................................24
16 GENERAL COVENANTS....................................................25
17 DEFAULT..............................................................29
18 APPLICATION OF RECEIPTS..............................................36
19 EVIDENCE AND CALCULATIONS............................................37
20 INDEMNITIES AND BREAK COSTS..........................................37
21 COSTS AND EXPENSES...................................................39
22 VARIATIONS AND WAIVERS...............................................40
23 CHANGES TO THE PARTIES...............................................41
24 DISCLOSURE OF INFORMATION............................................42
25 SET-OFF .............................................................43
26 SEVERABILITY.........................................................43
27 COUNTERPARTS.........................................................44
28 NOTICES .............................................................44
29 LANGUAGE.............................................................45
30 GOVERNING LAW........................................................46
31 JURISDICTION.........................................................46
SCHEDULES
SCHEDULE 1................................................................48
CONDITIONS PRECEDENT DOCUMENTS.......................................48
SCHEDULE 2...............................................................50
SHARE PLEDGE AGREEMENT...............................................50
SCHEDULE 3...............................................................51
FORM OF REQUEST FOR UTILISATION......................................51
CONTENTS PAGE 2
<PAGE>
THIS FACILITY AGREEMENT is dated September 2005
BETWEEN
(1) Navalmar Transportes Maritimos Lda, a company established under the
laws of Portugal in Madeira's Free trade Zone, tax corporate number
511.095.694, having its registered address at Rua das Murcas, number
15, second floor, room G, parish of Se, borough of Funchal, Madeira,
Portugal, registered with Madeira's Free Trade Zone Companies Registry
Office under number 2968 (the `Borrower'); and
(2) Banca Popolare Italiana Societa Cooperativa, London Branch, a bank
incorporated pursuant to the laws of Italy, with its registered office
in Lodi, via Polenghi Lombardo n. 13, corporate capital equal to Euro
885,127,227.00, registered with the Register of Enterprises of Lodi
under no. 3, tax code no. 00691360150, acting through its office
situate at 1 Moorgate, London, EC2R 6JH, United Kingdom (the `Lender').
Whereas
The Lender has agreed to make available to the Borrower, on the terms and
conditions hereinafter specified, a loan facility of up to five million United
States Dollars (USD5,000,000) for the purpose of financing part of the cost of
the acquisition by the Borrower of Dannebrog Rederi AS.
Now therefore it is agreed as follows -
1 INTERPRETATION
1.1 DEFINITIONS
In this Agreement -
`Agreement' means this facility agreement together with its Schedules.
`AMEX' means the American Stock Exchange.
PAGE 1
<PAGE>
`Arrangement Fee' means an amount of USD12,500.00 payable on the
signing of this Agreement.
`Availability Period' means the period starting from the date of this
Agreement and ending on 31st October 2005.
`Break Costs' shall have the meaning ascribed to it in Clause 20.3(b).
`Business Day' means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London and in New York.
`Commitment' means the amount which the Lender has agreed to lend to
the Borrower under Clause 2 as cancelled, reduced or disbursed pursuant
to this Agreement.
`Corporation' means MC Shipping Inc., a company incorporated in and
subject to the laws of the Republic of Liberia, whose principal
executive office is at Richmond House, 12 Par-la-ville Road, Hamilton,
Bermuda.
`Custodian' means Citibank, New York in its capacity as a "securities
intermediary".
`Default' means -
(a) an Event of Default; or
(b) an event which would constitute (with the giving of any notice
the lapse of time or the making of any determination under
this Agreement) an Event of Default.
`Encumbrance' means -
(a) any mortgage, pledge, lien, charge (whether floating or
fixed), assignment, security interest, title retention or
trust arrangement and any other security agreement or
arrangement; and
PAGE 2
<PAGE>
(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.
`Event of Default' means any of the events or circumstances described
in Clause 17.
`Facility Amount' means an amount equal to the lesser of -
(a) USD5,000,000.00; and
(b) fifty per cent (50%) of the market value (based on the daily
closing price on AMEX) of the Original Pledged Shares, such
valuation to be determined on the Utilisation Date.
`Facility Office' means the office(s) through which the Lender will
perform its obligations under this Agreement.
`Final Maturity Date' means the date falling sixty (60) months after
the Utilisation Date.
`Financial Indebtedness' means any indebtedness, although not yet due
and/or payable, for or in respect of -
(a) moneys borrowed;
(b) any bond, note, debenture, loan stock or other similar
instrument;
(c) any finance or capital lease;
PAGE 3
<PAGE>
(d) receivables sold or discounted (otherwise than on a
non-recourse basis);
(e) the acquisition cost of any asset to the extent payable after
its acquisition or possession by the party liable where the
deferred payment is arranged primarily as a method of raising
finance or financing the acquisition of that asset;
(f) any derivative transaction protecting against or benefiting
from fluctuations in any rate or price;
(g) any other transaction (including any forward sale or purchase
agreement) which has the commercial effect of a borrowing;
(h) any counter-indemnity obligation in respect of any guarantee,
indemnity, bond, letter of credit or any other instrument
issued by a bank or financial institution; or
(i) any guarantee, indemnity or similar assurance against
financial loss of any person in respect of any item referred
to in paragraphs (a) to (h) above.
`Increased Cost' means -
(a) an additional or increased cost;
(b) a reduction in the rate of return under this Agreement or on its
overall capital; or
(c) a reduction of an amount due and payable under this Agreement,
which is incurred or suffered by the Lender as a result of having
entered into this Agreement or funding or performing its obligations
under this Agreement.
`Loan' means, unless otherwise stated in this Agreement, the principal
amount borrowed by the Borrower on the Utilisation Date or (as the
context may require) the principal amount owing to the Lender under
this Agreement at any relevant time.
PAGE 4
<PAGE>
`Margin' means 1.25 per cent per annum.
`Material Adverse Effect' means a material adverse effect on -
(a) the business or financial condition of the Borrower;
(b) the ability of the Borrower to perform its material obligations
under this Agreement; or
(c) the validity or enforceability of this Agreement.
`Pledgor' means Navalmar (UK) Limited, a company registered in England
and Wales with company number 02537210 and having its registered office
at 5-7 St. Helens Place, London EC3A 6AU, United Kingdom.
`Party' means a party to this Agreement.
`Pledged Shares' shall have the meaning given to such term in the Share
Pledge Agreement;
`Original Pledged Shares' shall have the meaning given to such term in
the Share Pledge Agreement;
`Rate Fixing Day' means the second Business Day before the first day of
a Term or such other day as the Lender reasonably determines is
generally treated as the rate fixing day by market practice in the
relevant interbank market.
`Repayment Date' means each of the dates falling at six monthly
intervals after the Utilisation Date up to and including the Final
Maturity Date.
`Repayment Instalment' means each instalment for repayment of the Loan.
`Request' means the request for the Loan, substantially in the form of
Schedule 3 (Form of Request).
PAGE 5
<PAGE>
`Security Party' means the Borrower and the Pledgor.
`Share Pledge Agreement' means the pledge of shares to be granted by
the Pledgor in favour of the Lender in the form of Schedule 2 to this
Agreement whereby the Pledgor will pledge all of its right, title and
interest in the Pledged Shares to the Lender as security for the
Borrower's obligations under this Agreement.
`Subsidiary' means any company or entity directly or indirectly
controlled by a person, and for this purpose "control" means either the
ownership of more than 50% of the voting share capital (or equivalent
rights of ownership) of such company or the power to direct its
policies and management, whether by contract or otherwise.
`Tax' means all present and future taxes, levies, imposts, duties, fees
or other charges or withholdings of a similar nature (including any
related penalty or interest).
`Tax Deduction' means a deduction or withholding for or on account of
Tax from a payment under this Agreement.
`Tax Payment' means a payment made by the Borrower to the Lender in any
way related to a Tax Deduction or under any indemnity given by the
Borrower in respect of Tax under this Agreement.
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