Exhibit
10.35


 


Private & Confidential


 


CONFORMED
COPY


 


 


FACILITY
AGREEMENT


for a


Term Loan,
Overdraft and Guarantee Facility


of up to
US$183,400,000


to


AEGEAN
MARINE PETROLEUM NETWORK INC.


and


AEGEAN
MARINE PETROLEUM S.A.


provided by


THE ROYAL
BANK OF SCOTLAND PLC


 


 





 

















 


Contents


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1

  	
  Purpose
  and definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  2

  	
  The
  Commitment and the Term Loan; the Overdraft and the Guarantee Facility

  	
  25

  
	
   

  	
   

  	
   

  
	
  3

  	
  Interest
  and Interest Periods

  	
  34

  
	
   

  	
   

  	
   

  
	
  4

  	
  Repayment
  and prepayment

  	
  37

  
	
   

  	
   

  	
   

  
	
  5

  	
  Fees,
  commitment commission and expenses

  	
  41

  
	
   

  	
   

  	
   

  
	
  6

  	
  Payments
  and taxes; accounts and calculations

  	
  42

  
	
   

  	
   

  	
   

  
	
  7

  	
  Representations
  and warranties

  	
  44

  
	
   

  	
   

  	
   

  
	
  8

  	
  Undertakings

  	
  50

  
	
   

  	
   

  	
   

  
	
  9

  	
  Conditions

  	
  59

  
	
   

  	
   

  	
   

  
	
  10

  	
  Events
  of Default

  	
  60

  
	
   

  	
   

  	
   

  
	
  11

  	
  Indemnities

  	
  65

  
	
   

  	
   

  	
   

  
	
  12

  	
  Unlawfulness
  and increased costs

  	
  66

  
	
   

  	
   

  	
   

  
	
  13

  	
  Security
  and set-off

  	
  67

  
	
   

  	
   

  	
   

  
	
  14

  	
  Accounts

  	
  68

  
	
   

  	
   

  	
   

  
	
  15

  	
  Assignment,
  transfer and lending office

  	
  71

  
	
   

  	
   

  	
   

  
	
  16

  	
  Notices
  and other matters

  	
  72

  
	
   

  	
   

  	
   

  
	
  17

  	
  Governing
  law and jurisdiction

  	
  76

  



 

















 


THIS AGREEMENT is dated
19 December 2006 as amended and supplemented on 17 April 2007 and 23 May 2007
and made BETWEEN:


 


(1)                                  AEGEAN MARINE PETROLEUM NETWORK INC. and AEGEAN MARINE PETROLEUM S.A. as joint and
several Borrowers; and


 


(2)                                  THE ROYAL BANK OF SCOTLAND PLC as Bank.


 


IT IS AGREED as
follows:


 


1                                         Purpose and definitions


 


1.1                               Purpose


 


This Agreement sets out the terms and
conditions upon and subject to which the Bank agrees to make available to the
Borrowers, jointly and severally:


 


1.1.1                      a loan of
up to Thirty three million four hundred thousand Dollars ($33,400,000) in
twenty (20) Advances for the purpose of assisting the Borrowers to lend funds
to the Newbuilding Owners to be used for the financing and/or refinancing of
part of the construction and acquisition cost of the Newbuildings;


 


1.1.2                      an
overdraft facility of up to Fifty million Dollars ($50,000,000) for the purpose
of assisting the Borrowers to finance the working capital needs of the Group;
and


 


1.1.3                      a
multi-currency revolving guarantee and letter of credit facility of up to One
hundred million Dollars ($100,000,000) for the purpose of assisting the
Borrowers to finance the purchase and transportation of fuel cargoes and the
payment of other expenses incidental to the supply of bunkers and lubricants to
customers of the AMPSA Borrower.


 


1.2                               Definitions


 


In this Agreement, unless the context otherwise
requires:


 


“Accounting
Information” means (a) the annual audited consolidated financial
statements of the Group and (b) the semi-annual unaudited consolidated
financial statements of the Group, each as provided or (as the context may
require) to be provided to the Bank in accordance with clause 8.1.5;


 


“Accounting
Period” means (a) each financial year of the AMPNI Borrower and (b)
each half-year of each financial year of the AMPNI Borrower, for which Accounting
Information is required to be delivered pursuant to this Agreement;


 


“Accounts”
means, together, the Manager’s Operating Account, the AMPNI Operating Account,
the AMPSA Operating Account, the Overdraft Account and the Cash Collateral
Account and, in relation to each Ship, it means the Manager’s Operating
Account, and “Account” means any
of them;


 


“Account
Pledges” means, together, the AMPNI Operating Account Pledge, the
AMPSA Operating Account Pledge and the Cash Collateral Account Pledge and “Account Pledge” means any of them;


 


“Actual
Exposure” means, at any relevant time, the aggregate of:


 


(a)                                  the Loan
less any Pre-delivery Advances in respect of a Newbuilding which has not yet
been delivered to the relevant Newbuilding Owner; and


 


(b)                                 the
Outstanding Amounts for all L/Cs (subject to clause 2.18); and


 


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(c)                                  any
undrawn and available amount of the Overdraft Facility taken into account by
the Borrowers for the purpose of complying with clause 8.6.1(c) at the then
latest time when compliance was tested by the Bank;


 


“Additional  Contract A”
means the memorandum of agreement or shipbuilding contract made or (as the
context may require) to be made between the Additional Owner A and the
Additional Ship Seller A in form and substance in all respects acceptable to
the Bank and as contemplated by clause 14.2.1, relating to the sale (and/or
construction) by the Additional Ship Seller A, and the purchase by the
Additional Owner A, of the Additional Ship A;


 


“Additional  Contract B”
means the memorandum of agreement or shipbuilding contract made or (as the
context may require) to be made between the Additional Owner B and the
Additional Ship Seller B in form and substance in all respects acceptable to
the Bank and as contemplated by clause 14.2.1, relating to the sale (and/or
construction) by the Additional Ship Seller B, and the purchase by the
Additional Owner B, of the Additional Ship B;


 


“Additional  Contract C”
means the memorandum of agreement or shipbuilding contract made or (as the
context may require) to be made between the Additional Owner C and the
Additional Ship Seller C in form and substance in all respects acceptable to
the Bank and as contemplated by clause 14.2.1, relating to the sale (and/or
construction) by the Additional Ship Seller C, and the purchase by the
Additional Owner C, of the Additional Ship C;


 


“Additional  Contracts”
means, together the Additional Contract A, the Additional Contract B and the
Additional Contract C and “Additional
Contract” means any of them;


 


“Additional
Cost” means, in relation to any period, a percentage calculated for
such period at an annual rate determined in the manner set out in schedule 9;


 


“Additional
Mortgage Date” means, in relation to each Additional Owner and the
relevant Ship, the latest date when the Borrowers shall deliver the documents
and evidence specified in clause 8.1.15(b) in connection with such Additional
Ship in accordance with the terms of such clause 8.1.15(b);


 


“Additional Owner” means:


 


(a)                                  in relation to Additional Ship A,
the Additional Owner A;


 


(b)                                 in relation to Additional Ship B,
the Additional Owner B; or


 


(c)                                  in relation to Additional Ship C,
the Additional Owner C,


 


and “Additional Owners” means any or all of them;


 


“Additional  Owner A”
means Baldwin Management Co. of Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Marshall Islands MH 96960 or such other member of the Group
advised by the Borrowers to the Bank in writing and accepted by the Bank in
writing (no later than forty (40) Banking Days prior to the Delivery Date of
the Additional Ship A) to be the purchaser of such Ship pursuant to the
Additional Contract A, and includes its successors in title;


 


“Additional  Owner B”
means Sea Breezer Marine S.A. of Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Marshall Islands MH 96960 or such other member of the Group
advised by the Borrowers to the Bank in writing and accepted by the Bank in
writing (no later than forty (40) Banking Days prior to the Delivery Date of
the Additional Ship B) to be the purchaser of such Ship pursuant to the
Additional Contract B, and includes its successors in title;


 


“Additional  Owner C”
means Tiffany Marine S.A. of Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Marshall Islands MH 96960 or such other member of the Group
advised by the Borrowers to the Bank in writing and accepted by the Bank in
writing (no later than forty (40)


 


2

















 


Banking Days prior to the
Delivery Date of the Additional Ship C) to be the purchaser of such Ship
pursuant to the Additional Contract C, and includes its successors in title;


 


“Additional  Ship”
means:


 


(a)                                  in relation to Additional Owner A,
the Additional Ship A;


 


(b)                                 in relation to Additional Owner B,
the Additional Ship B; or


 


(c)                                  in relation to Additional Owner C,
the Additional Ship C,


 


and “Additional  Ships”
means any or all of them;


 


“Additional  Ship A”
means a motor vessel of the Approved Type nominated in writing by the Borrowers
to the Bank not less than thirty (30) Banking Days before its proposed Delivery
Date and approved in writing by the Bank not later than five (5) Banking Days
after receipt by the Bank of such nomination, to be purchased by the Additional
Owner A pursuant to the Additional Contract A and to be registered on its
Delivery Date in the ownership of the Additional Owner A under the laws and the
flag of the relevant Flag State through the relevant Registry;


 


“Additional  Ship B”
means a motor vessel of the Approved Type nominated in writing by the Borrowers
to the Bank not less than thirty (30) Banking Days before its proposed Delivery
Date and approved in writing by the Bank not later than five (5) Banking Days
after receipt by the Bank of such nomination, to be purchased by the Additional
Owner B pursuant to the Additional Contract B and to be registered on its
Delivery Date in the ownership of the Additional Owner B under the laws and the
flag of the relevant Flag State through the relevant Registry;


 


“Additional  Ship C”
means a motor vessel of the Approved Type nominated in writing by the Borrowers
to the Bank not less than thirty (30) Banking Days before its proposed Delivery
Date and approved in writing by the Bank not later than five (5) Banking Days
after receipt by the Bank of such nomination, to be purchased by the Additional
Owner C pursuant to the Additional Contract C and to be registered on its
Delivery Date in the ownership of the Additional Owner C under the laws and the
flag of the relevant Flag State through the relevant Registry;


 


“Additional
Ship Seller” means:


 


(a)                                  in
relation to Additional Ship A, the Additional Ship Seller A;


 


(b)                                 in
relation to Additional Ship B, the Additional Ship Seller B; or


 


(c)                                  in
relation to Additional Ship C, the Additional Ship Seller C,


 


and “Additional
Ship Sellers” means any or all of them;


 


“Additional Ship Seller A” means the company which is a party
to the Additional Contract A as seller and/or builder (as the case may be) of
the Additional Ship A and includes its successors in title;


 


“Additional Ship Seller B” means the company which is a party
to the Additional Contract B as seller and/or builder (as the case may be) of
the Additional Ship B and includes its successors in title;


 


“Additional Ship Seller C” means the company which is a party
to the Additional Contract C as seller and/or builder (as the case may be) of
the Additional Ship C and includes its successors in title;


 


“Advances”
means each borrowing of a proportion of the Commitment by the Borrowers or (as
the context may require) the principal amount of such borrowing, it includes
(i) each Amorgos Pre-delivery Advance, (ii) each Kimolos Pre-delivery Advance,
(iii) each Milos Pre-delivery


 


3

















 


Advance, (iv) each Mykonos Pre-delivery
Advance, (v) each Syros Pre-delivery Advance and (vi) each of the five (5)
Delivery Advances (ie one for each Newbuilding), and:


 


(a)                                  in
relation to the Amorgos Ship and the Amorgos Tranche, it means the Amorgos
Advances;


 


(b)                                 in
relation to the Kimolos Ship and the Kimolos Tranche, it means the Kimolos
Advances;


 


(c)                                  in
relation to the Milos Ship and the Milos Tranche, it means the Milos Advances;


 


(d)                                 in
relation to the Mykonos Ship and the Mykonos Tranche, it means the Mykonos
Advances; or


 


(e)                                  in
relation to the Syros Ship and the Syros Tranche, it means the Syros Advances,


 


and “Advance”
means any of them;


 


“Aggregate Liabilities” means, at any relevant time, the
aggregate of the Loan and the Outstandings;


 


“Amorgos
Advances” means, together, the Amorgos Pre-delivery Advances and the
Delivery Advance in respect of the Amorgos Ship and “Amorgos Advance” means any of them;


 


“Amorgos
Owner” means Amorgos Maritime Inc.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall
Islands MH96960 and includes its successors in title;


 


“Amorgos
Pre-delivery Advances” means, together, the First Advance, the
Second Advance and the Third Advance in respect of the Amorgos Ship and “Amorgos Pre-delivery Advance” means any of
them;


 


“Amorgos
Ship” means the (approximately)
3,800 dwt double-hull oil product tanker known on the date of this Agreement as
Hull No. DN-3500-4 and under construction by the Builders, to be constructed
and sold by the Builders to the Amorgos Owner pursuant to the relevant Contract
and to be registered on its Delivery Date in the ownership of the Amorgos Owner
through the relevant Registry under the laws and flag of the relevant Flag
State;


 


“Amorgos
Tranche” means a tranche of the Term Loan of up to Six million six hundred
and eighty thousand Dollars ($6,680,000) comprising, and to be drawn down in,
four (4) Advances (being the Amorgos Advances);


 


“AMPNI
Borrower” means Aegean Marine Petroleum Network Inc. of Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MHJ96960 and includes its successors in title;


 


“AMPNI
Operating Account” means an
interest bearing Dollar account of the AMPNI Borrower opened or (as the context
may require) to be opened by the AMPNI Borrower with the Bank and includes any
sub-accounts thereof and any other account designated in writing by the Bank to
be an AMPNI Operating Account for the purposes of this Agreement;


 


“AMPNI
Operating Account Pledge” means the pledge of the AMPNI Operating
Account executed or (as the context may require) to be executed by the AMPNI
Borrower in favour of the Bank in such form as the Bank may in its absolute
discretion require;


 


“AMPSA
Borrower” means Aegean Marine Petroleum S.A. of 80 Broad Street,
Monrovia, Republic of Liberia and includes its successors in title;


 


“AMPSA
Operating Account” means an
interest bearing Dollar account of the AMPSA Borrower opened or (as the context
may require) to be opened by the AMPSA Borrower with the Bank and includes any
sub-accounts thereof and any other account designated in writing by the Bank to
be an AMPSA Operating Account for the purposes of this Agreement;


 


4

















 


“AMPSA
Operating Account Pledge” means the pledge of the AMPSA Operating
Account executed or (as the context may require) to be executed by the AMPSA
Borrower in favour of the Bank in such form as the Bank may in its absolute
discretion require;


 


“Applicable
Accounting Principles” means, at any relevant time, the most recent
and up to date US GAAP;


 


“Approved
Type” means a double-hull product tanker which is:


 


(a)                                  of up to
(approximately) 10,000 dwt; and


 


(b)                                 otherwise
in all respects (including, without limitation, as to its physical condition,
flag, classification or employment) acceptable to the Bank in its sole
discretion;


 


“Assignee” has the meaning
ascribed thereto in clause 15.3;


 


“Availability Period”
means, in relation to each of the Overdraft Facility and the Guarantee
Facility, the period commencing on the date of this Agreement and ending on the
earlier of:


 


(a)                                  the date
falling one (1) month before the Final Maturity Date (or such later date as the
Bank may agree with the Borrowers); and


 


(b)                                 the date
on which the Bank’s obligation to make the Overdraft Facility or (as the case
may be) the Guarantee Facility available is fully cancelled or terminated under
the terms of this Agreement; and


 


(c)                                  the date
when the Term Loan is repaid or prepaid in full;


 


“Bank” means The Royal Bank
of Scotland plc whose registered office is at 36 St. Andrew Square, Edinburgh
EH2 2YB, Scotland acting for the purposes of this Agreement through its branch
at 45 Akti Miaouli, 185 36 Piraeus, Greece (or of such other address as may
last have been notified to the Borrowers pursuant to clause 15.6) and includes
its successors in title, Assignees and/or Transferees;


 


“Banking Day” means a day
on which banks are open in London and Greece and, in respect of a day on which
payment is required to be made or other dealing is due to take place under this
Agreement:


 


(a)                                  in
Dollars, a day on which banks are open in New York City;


 


(b)                                 in an
Optional Currency (other than euros), a day on which banks are open in New York
City and the principal financial centre of the country of that Optional
Currency; and


 


(c)                                  in euros,
a Target Day,


 


or any other relevant place of payment under clause 6;


 


“Beneficiary” means, in
relation to an L/C, the person in whose favour the L/C has been issued under
this Agreement;


 


“Borrowed Money” means
Indebtedness incurred in respect of (i) money borrowed or raised and debit
balances at banks, (ii) any bond, note, loan stock, debenture or similar debt
instrument, (iii) acceptance or documentary credit facilities,
(iv) receivables sold or discounted (otherwise than on a non-recourse
basis), (v) deferred payments for assets or services acquired, (vi) finance
leases and hire purchase contracts, (vii) swaps, forward exchange contracts,
futures and other derivatives, (viii) any other transaction (including without
limitation forward sale or purchase agreements) having the commercial effect of
a borrowing or raising of money or of any of (ii) to (vii) above and (ix)
guarantees in respect of Indebtedness of any person falling within any of (i)
to (viii) above;


 


5

















 


“Borrowers” mean, together,
the AMPNI Borrower and the AMPSA Borrower and “Borrower” means either or both of them;


 


“Borrowers’ Security Documents”
means, at any relevant time, such of the Security Documents as shall have been
executed by either of the Borrowers at such time;


 


“Builders” means, together,
FSIGC and FSS and “Builder” means
either of them;


 


“Cash Collateral Account”
means an interest bearing account of the AMPSA Borrower opened or (as the
context may require) to be opened by the AMPSA Borrower with the Bank and
includes any sub-accounts thereof and any other account designated in writing
by the Bank to be a Cash Collateral Account for the purposes of this Agreement;


 


“Cash Collateral Account Pledge”
means the pledge of the Cash Collateral Account executed or (as the context may
require) to be executed by the AMPSA Borrower in favour of the Bank in such
form as the Bank may in its absolute discretion require;


 


“Casualty Amount” means, in
relation to each Ship, Two hundred and fifty thousand Dollars ($250,000) or the
equivalent in any other currency;


 


“Classification” means:


 


(a)                                  in
relation to each Newbuilding, the classification “+A1 OIL CARRIER (E) ESP,
FP.<60oC, + ACC + AMS” with the relevant Classification Society;
or


 


(b)                                 in
relation to each Ship (other than the Newbuildings), the highest possible
classification for a vessel of such Ship’s type with the relevant
Classification Society,


 


or, in each case, such other classification as the Bank shall, at the
request of an Owner, have agreed in writing shall be treated as the
Classification in relation to such Owner’s Ship for the purposes of the
relevant Ship Security Documents;


 


“Classification Society”
means, in relation to each Ship, such classification society (being a member of
the International Association of Classification Societies (IACS)) which the
Bank shall, at the request of an Owner, have agreed in writing shall be treated
as the Classification Society in relation to such Owner’s Ship for the purposes
of the relevant Ship Security Documents;


 


“Code” means the
International Management Code for the Safe Operation of Ships and for Pollution
Prevention constituted pursuant to Resolution A. 741(18) of the International
Maritime Organisation and incorporated into the International Convention on
Safety of Life at Sea 1974 (as amended) and includes any amendments or
extensions thereto and any regulation issued pursuant thereto;


 


“Collateral Mortgage Date”
means, in relation to each Collateral Owner and the Ship owned by it, the
latest date when the Borrowers shall deliver the documents and evidence
specified in clause 8.1.15(a) in connection with such Collateral Ship in
accordance with the terms of such clause 8.1.15(a);


 


“Collateral
Owner” means:


 


(a)           in
relation to Collateral Ship A, the Collateral Owner A;


 


(b)           in
relation to Collateral Ship B, the Collateral Owner B; or


 


(c)           in
relation to Collateral Ship C, the Collateral Owner C,


 


and “Collateral
Owners” means any or all of them;


 


“Collateral
Owner A” means Ouranos Tanking S.A. of 80 Broad Street, Monrovia,
Liberia and includes its successors in title;


 


6

















 


“Collateral
Owner B” means Aegean VII Shipping Ltd. of 13/16 Vincenti Buildings,
Strait Street, Valletta, Malta and includes its successors in title;


 


“Collateral
Owner C” means Venus Holding Company of Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 and includes
its successors in title;


 


“Collateral
Ship” means:


 


(a)                                  in relation to Collateral Owner A,
the Collateral Ship A;


 


(b)                                 in relation to Collateral Owner B,
the Collateral Ship B;


 


(c)                                  in relation to Collateral Owner C,
the Collateral Ship C;


 


and “Collateral
Ships” means any or all of them;


 


“Collateral
Ship A” means the Ship owned by the Collateral Owner A, as described
in more detail in row 17 of Part B of schedule 3;


 


“Collateral
Ship B” means the Ship owned by the Collateral Owner B, as described
in more detail in row 18 of Part B of schedule 3;


 


“Collateral
Ship C” means the Ship owned by the Collateral Owner C, as described
in more detail in row 19 of Part B of schedule 3;


 


“Commitment” means the
amount which the Bank has agreed to lend to the Borrowers under clause 2.1
as reduced by any relevant term of this Agreement;


 


“Compulsory Acquisition”
means, in relation to a Ship, requisition for title or other compulsory
acquisition, requisition, appropriation, expropriation, deprivation, forfeiture
or confiscation for any reason of that Ship by any Government Entity or other
competent authority, whether de jure or de facto, but shall exclude requisition
for use or hire not involving requisition of title;


 


“Consolidated  Book Net Worth” means the aggregate of the
amounts paid-up or credited as paid-up on the AMPNI Borrower’s issued share
capital and the amount of the consolidated capital and revenue reserves of the
Group (including any share premium account, capital redemption reserve fund and
any credit balance on the consolidated profit and loss account of the Group)
all as shown by the latest consolidated balance sheet and profit and loss
account of the Group delivered under this Agreement but after:


 


(a)                                  deducting
any debit balance on such consolidated profit and loss account;


 


(b)                                 deducting
any amount shown in such consolidated balance sheet in respect of goodwill
(including good will arising on consolidation) and other intangible assets;


 


(c)                                  deducting
(so far as not otherwise excluded as attributable to minority interests) a sum
equal to the aggregate of the amount by which the book value of any fixed
assets of any member of the Group has been written up after 31 December 2006
(or, in the case of a company becoming a subsidiary after that date, the date
on which that company became a subsidiary) by way of revaluation. For the
purposes of this paragraph (c) any increase in the book value of any fixed
asset resulting from its transfer by one member of the Group to another member
of the Group shall be deemed to result from a writing up of its book value by
way of revaluation;


 


(d)                                 excluding
amounts set aside for taxation as at the date of such balance sheet and making
such adjustments as may be appropriate in respect of any significant additional
taxation expected to result from transactions carried out by any member of the
Group after such date and not reflected in that balance sheet;


 


(e)                                  deducting
all amounts attributable to minority interests in Subsidiaries;


 


7

















 


(f)                                    making
such adjustments as may be appropriate in respect of any variation in the amount
of such paid up share capital or any such reserves after the date of the
relevant balance sheet (but so that no such adjustment shall be made in respect
of any variation in profit and loss account except to the extent of any profit
or loss, calculated on a cumulative basis, recorded in the consolidated profit
and loss account of the Group delivered to the Bank before the date of this
Agreement, or under clause 8.1.5 in respect of any subsequent period);


 


(g)                                 making
such adjustments as may be appropriate in respect of any distribution declared,
recommended or made by any member of the Group (otherwise than attributable
directly or indirectly to the AMPNI Borrower) out of profits earned up to and
including the date of the latest audited balance sheet of that member of the
Group to the extent that such distribution is not provided for in that balance
sheet;


 


(h)                                 making
such adjustments as may be appropriate in respect of any variation in the
interests of the AMPNI Borrower in its Subsidiaries since the date of the
latest consolidated balance sheet of the Group;


 


(i)                                     if the
calculation is required for the purpose of or in connection with a transaction
under or in connection with which any company is to become or cease to be a
Subsidiary of the AMPNI Borrower, making all such adjustments as would be
appropriate if that transaction had been carried into effect; and


 


(j)                                     making
such adjustments as may be appropriate in the opinion of the Bank in order that
the above amounts are calculated in accordance with the Applicable Accounting
Principles;


 


“Consolidated
Current Assets” means, as of the last day of an Accounting Period,
the aggregate of the cash and marketable securities, trade and other
receivables from persons other than a member of the Group realisable within one
(1) year, inventories and prepaid expenses which are to be charged to income
within one (1) year less any doubtful debts and any discounts or allowances
given, in each case in relation to the Group, as stated in the then most recent
Accounting Information relevant to such Accounting Period;


 


“Consolidated
Debt” means, as of the last day of an Accounting Period, the
aggregate amount of Debt owed by the members of the Group (other than any Debt
owing by any member of the Group to another member of the Group), as stated in
the then most recent Accounting Information relevant to such Accounting Period;


 


“Consolidated
Leverage Ratio” means, as of the last day of an Accounting Period,
the ratio of (a) the Consolidated Debt to (b) the Consolidated Total Assets, as
stated in the then most recent Accounting Information relevant to such
Accounting Period;


 


“Consolidated
Liquid Funds” means, as of the last day of an Accounting Period or
at any other relevant time:


 


(a)                                  cash of
any member of the Group in bank accounts held with the Bank which is free from
any Encumbrances (other than Permitted Encumbrances) but excluding:


 


(i)                                   any
amounts required by and maintained by the Borrowers in the AMPNI Operating
Account for the purposes of compliance with, clause 8.1.14; and


 


(ii)                                any
amounts standing to the credit of the Cash Collateral Account;


 


(b)                                 the
undrawn amount of any committed overdraft facilities available to any member of
the Group with a remaining tenor of no less than six (6) months (including the
Overdraft Facility); and


 


(c)                                  any
instrument, investment or security of any member of the Group approved by the
Bank in its sole discretion which is free from Encumbrances,


 


8

















 


in each case, as stated in the then most recent
Accounting Information relevant to such Accounting Period and/or as calculated
by the Bank in its sole discretion by reference to any other information
available to the Bank at the relevant time of calculation;


 


“Consolidated
Tangible Fixed Assets” means, as of the last day of an Accounting
Period, the aggregate of (a) the Fleet Market Value and (b) the book value
(less depreciation computed in accordance with the Applicable Accounting
Principles consistently applied) on a consolidated basis of all other tangible
fixed assets of the Group (i.e. excluding Fleet Vessels), as stated in the then
most recent Accounting Information relevant to such Accounting Period;


 


“Consolidated
Total Assets” means, in respect of an Accounting Period, the
aggregate of Consolidated Current Assets and Consolidated Tangible Fixed
Assets;


 


“Construction
Cost” means, in relation to each Newbuilding, the aggregate of (a)
the Contract Price for that Newbuilding and (b) the Supervision Cost for that
Newbuilding and “Construction Costs”
means any or all of them;


 


“Contract”
means, in relation to each Newbuilding, the shipbuilding contract dated 6
February 2005, as amended by addendum No. 1 dated 31 March 2005, addendum No. 2
dated 27 April 2005 and addendum No. 3 dated 27 May 2005, all made between the
Builders and the Newbuilding Owner relevant to such Newbuilding as may be
further amended, supplemented, varied, replaced or novated from time to time
with the prior written consent of the Bank, relating to the construction and
sale by the Builders, and the purchase by such Newbuilding Owner, of the
relevant Newbuilding and “Contracts”
means any or all of them;


 


“Contract
Assignment Consent and Acknowledgement” means, in relation to each
Newbuilding, the acknowledgement of notice of, and consent to, the assignment
in respect of the relevant Contract to be given by the Builders in the form
scheduled to the relevant Pre-delivery Security Assignment and “Contract Assignment Consents and Acknowledgements”
means any or all of them;


 


“Contract Price”
means, in relation to each Newbuilding, the purchase price for such Newbuilding
under the relevant Contract, being Six million eight hundred thousand Dollars
($6,800,000) or such other lesser sum in Dollars as may be payable by the
relevant Newbuilding Owner to the Builders pursuant to the relevant Contract as
the purchase price for the relevant Newbuilding and “Contract Prices” means any or all of them;


 


“Corporate
Guarantee” means the corporate guarantee executed or (as the context
may require) to be executed by the Corporate Guarantor in favour of the Bank in
such form as the Bank may in its sole discretion require;


 


“Corporate
Guarantor” means Aegean Bunkering Services Inc. of Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 and
includes its successors in title;


 


“Credit
Support Document” has the meaning given to that expression in
section 14 of the Master Swap Agreement and as set out in
paragraph (f) of Part 4 of the Schedule to the Master Swap Agreement;


 


“Credit
Support Provider” means any person defined as such in the Master
Swap Agreement pursuant to section 14 of the Master Swap Agreement;


 


“Customer” means each person from whom Receivables are due to
the AMPSA Borrower at any relevant time and “Customers”
means any or all of them;


 


“Debt”
means, in relation to any member of the Group (the “debtor”):


 


(a)                                  Borrowed
Money of the debtor;


 


9

















 


(b)                                 liability
for any credit to the debtor from a supplier of goods or services or under any
instalment purchase or payment plan or other similar arrangement;


 


(c)                                  contingent
liabilities of the debtor (including without limitation any taxes or other
payments under dispute) which have been or, under the Applicable Accounting Principles
consistently applied, should be recorded in the notes to the Accounting
Information;


 


(d)                                 deferred
tax of the debtor; and


 


(e)                                  liability
under a guarantee, indemnity or similar obligation entered into by the debtor
in respect of a liability of another person who is not a member of the Group
which would fall within (a) to (d) above if the references to the debtor
referred  to the other person;


 


“Deed of
Covenant” means, in relation to each Ship, the first priority deed
of covenant and/or general assignment (as the case may be) collateral to the
Mortgage for that Ship executed or (as the context may require) to be executed
by the relevant Owner in favour of the Bank in such form as the Bank may
require in its sole discretion and “Deeds of
Covenant” means any or all of them;


 


“Default”
means any Event of Default or any event or circumstance which with the giving
of notice or lapse of time or the satisfaction of any other condition (or any
combination thereof) would constitute an Event of Default;


 


“Delivery”
means:


 


(a)                                  in
relation to each Newbuilding, the delivery of such Newbuilding by the Builders
to, and the acceptance of such Newbuilding by, the relevant Newbuilding Owner
pursuant to the relevant Contract; or


 


(b)                                 in
relation to each Additional Ship, the delivery of such Additional Ship by the
relevant Additional Ship Seller to, and the acceptance of such Additional Ship
by, the relevant Additional Owner pursuant to the relevant Additional Contract;


 


“Delivery
Advance” means, in relation to each Newbuilding, an Advance of up to
Three million seven hundred and fifty seven thousand five hundred Dollars
($3,757,500) made or (as the context may require) to be made available to the
Borrowers for the purpose of (a) financing or refinancing in part the payment
of the final instalment of the Contract Price for the relevant Newbuilding and
the final instalment of the Supervision Cost for the relevant Newbuilding, each
falling due on the Delivery Date for the relevant Newbuilding and (b) (as to
the balance) refinancing the payment of any other part of the Construction Cost
for the relevant Newbuilding previously made by the relevant Newbuilding Owner
and not already financed under the terms of this Agreement and “Delivery Advances” means any or all of
them;


 


“Delivery
Date” means, in relation to each Newbuilding or Additional Ship, the
date upon which its Delivery occurs;


 


“Direct Credit Substitute” means a letter of credit or bank
guarantee issued or to be issued by the Bank in favour of a Beneficiary in such
form as is agreed between the Bank and the AMPSA Borrower which is required by
the AMPSA Borrower in the ordinary course of the AMPSA Borrower’s business and
which is neither a Documentary L/C nor a Transaction Related Standby L/C;


 


“DOC”
means a document of compliance issued to an Operator in accordance with rule 13
of the Code;


 


“Documentary L/C”
means a letter of credit issued or to be issued by the Bank in favour of a
Beneficiary in such form as is agreed between the Bank and the AMPSA Borrower
which directly relates to the purchase of Oil Products by the AMPSA Borrower
and which imposes on the Bank a primary obligation to pay upon presentation of
specified documents as specified in such letter of credit;


 


10

















 


“Dollars”
and “$” mean the lawful currency
of the United States of America and, in respect of all payments to be made
under any of the Security Documents, mean funds which are for same day
settlement in the New York Clearing House Interbank Payments System (or such
other U.S. dollar funds as may at the relevant time be customary for the
settlement of international banking transactions denominated in U.S. dollars);


 


“Drawdown
Date” means, in relation to an Advance, any date, being a Banking
Day falling during the relevant Drawdown Period, on which the Borrowers request
that Advance to be made as specified in the relevant Drawdown Notice (whether
or not such Advance is actually made or not);


 


“Drawdown
Notice” means a notice in the form or substantially in the form of
Part A of Error! Reference source not found.;


 


“Drawdown
Period” means, in relation to an Advance, the period commencing on
the date of this Agreement and ending on the relevant Termination Date or the
period ending on such earlier date (if any) on which (a) the aggregate amount
of all Advances is equal to the Commitment or (b) the Commitment is reduced to
zero pursuant to clauses 4.3, 10.2 or 12 or any other relevant term of
this Agreement or (c) Delivery of the Newbuilding relevant to such Advance
occurs;


 


“Earnings”
means, in relation to a Ship, all moneys whatsoever from time to time due or
payable to the Owner of such Ship during the Security Period arising out of the
use or operation of such Ship including (but without limiting the generality of
the foregoing) all freight, hire and passage moneys, income arising out of
pooling arrangements, compensation payable to such Owner in the event of
requisition of such Ship for hire, remuneration for salvage or towage services,
demurrage and detention moneys and damages for breach (or payment for variation
or termination) of any charterparty or other contract for the employment of
such Ship;


 


“EMU Legislation” means legislative measures of the Council of
the European Union for the introduction of, changeover to, or operation of, a
single or unified European Currency being part of the implementation of the
Third Stage;


 


“Encumbrance”
means any mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, assignment, trust arrangement or security interest or other
encumbrance of any kind securing any obligation of any person or any type of
preferential arrangement (including without limitation title transfer and/or
retention arrangements) having a similar effect;


 


“Environmental
Affiliate” means any agent or employee of any Owner or any other
Relevant Party or any person having a contractual relationship with any Owner
or any other Relevant Party in connection with any Relevant Ship or its
operation or the carriage of cargo and/or passengers thereon and/or the
provision of goods and/or services on or from any Relevant Ship;


 


“Environmental
Approval” means any consent, authorisation, licence or approval of
any governmental or public body or authorities or courts applicable to any
Relevant Ship or its operation or the carriage of cargo and/or passengers
thereon and/or the provision of goods and/or services on or from any Relevant
Ship required under any Environmental Law;


 


“Environmental
Claim” means any and all material enforcement, clean-up, removal or
other governmental or regulatory actions or orders instituted or completed
pursuant to any Environmental Law or any Environmental Approval together with
claims made by any third party relating to damage, contribution, loss or
injury, resulting from any actual or threatened emission, spill, release or
discharge of a Pollutant from any Relevant Ship;


 


“Environmental
Laws” means all national, international and state laws, rules,
regulations, treaties and conventions applicable to any Relevant Ship pertaining
to the pollution or protection of human health or the environment including,
without limitation, the carriage of Pollutants and actual or threatened
emissions, spills, releases or discharges of Pollutants;


 


11

















 


“EURIBOR”
means, in respect of any amount outstanding hereunder in euros and in relation
to a particular period, the rate per annum determined by the Bank to be that at
which deposits in euros and in an amount comparable with the amount in relation
to which EURIBOR is to be determined and for a period equal to the relevant
period were being offered by the Bank to prime banks in the European Interbank
Market at or about 11.00 a.m. (Brussels time) on the Quotation Date for such
period;


 


“euro”
and “euros” means, for the time
being, the single currency of Participating Member States as provided in the
EMU Legislation;


 


“Event of Default” means any of the events or circumstances
described in clause 10.1;


 


“Expiry Date”
means, in relation to an L/C, the expiry date specified in the Issue Request
relating thereto and initially applicable thereto or, as the context may
require, any extended expiry date requested and agreed to by the Bank pursuant
to clause 2.19 and/or clause 2.29 provided that in no circumstances shall the
expiry date of an L/C be a date falling after the Final Maturity Date except in
accordance with clause 2.29;


 


“Final Maturity Date” means, in relation to
the Overdraft Facility and the Guarantee Facility, the earlier of (a) the date
falling twenty four (24) months after the date of this Agreement and (b) 31
December 2008;


 


“First Advance” means, in relation to each Newbuilding, an
Advance of up to Four hundred and seventeen thousand five hundred Dollars
($417,500) made or (as the context may require) to be made available to the
Borrowers for the purpose of financing or refinancing in part the payment of
the second instalment of the Contract Price for the relevant Newbuilding and
the second instalment of the Supervision Cost for the relevant Newbuilding,
each falling due before the Delivery Date of the relevant Newbuilding as set
out in schedule 4 and “First Advances”
means any or all of them;


 


“First Repayment Date” means, in relation to each Tranche (and
subject to clause 6.3), the date falling three (3) months after the earlier of
(a) the Drawdown Date of the Delivery Advance relevant to such Tranche and (b)
the last day of the Drawdown Period for the Delivery Advance relevant to such
Tranche;


 


“Flag State” means, in relation to each Ship, such state or
territory (if any) specified opposite such Ship’s name in the column headed “Flag State” in Part B of schedule 3 or, in
each case, if not so specified or for any other reason, such other state or
territory designated in writing by the Bank in its absolute discretion, at the
request of an Owner as being the “Flag State” of such Owner’s Ship for the
purpose of the Security Documents;


 


“Fleet Market Value” means, as of the date of calculation, the
aggregate market value of the Fleet Vessels as most recently determined
pursuant to valuations obtained by the Security Agent and made in accordance
with the provisions of clause 8.2.2 of the Agreement (at the expense of
the Borrowers);


 


“Fleet Vessels” means the vessels (including, but not limited
to, the Ships) from time to time owned by the members of the Group and “Fleet Vessel” means any of them;


 


“FSIGC” means Fujian Shipbuilding Industry Group Corporation, a
corporation duly organized and existing under the laws of the People’s Republic
of China, having its registered office at 27 Qunzhong Road, Fuzhou, Fujian, The
People’s Republic of China and includes its successors in title;


 


“FSS” means Fujian Southeast Shipyard, a corporation duly
organized and existing under the laws of the People’s Republic of China, having
its registered office at 7# Jianshe Road, Economic Technical Development Zone
of Fuzhou, Fujian Province, The People’s Republic of China and includes its
successors in title;


 


12

















 


“Government
Entity” means and includes (whether having a distinct legal
personality or not) any national or local government authority, board,
commission, department, division, organ, instrumentality, court or agency and
any association, organisation or institution of which any of the foregoing is a
member or to whose jurisdiction any of the foregoing is subject or in whose
activities any of the foregoing is a participant;


 


“Group” means the AMPNI Borrower and its Subsidiaries from time
to time (including, for the avoidance of doubt, the AMPSA Borrower, each Owner
and the Corporate Guarantor) and “member of
the Group” shall be construed accordingly;


 


“Guarantee
Facility” means the multi-currency revolving guarantee and letter of
credit facility of up to $100,000,000 referred to in clause 2.11 and made
available by the Bank to the Borrowers pursuant to this Agreement;


 


“Guarantee
Facility Commitment” means $100,000,000 or the equivalent thereof in
Optional Currencies as such amount may be reduced or cancelled by any relevant
term of this Agreement;


 


“Indebtedness”
means any obligation for the payment or repayment of money, whether as
principal or as surety and whether present or future, actual or contingent;


 


“Insurance
Letter” means, in respect of a Ship, a letter from the Owner of such
Ship in the form set out in schedule 7;


 


“Insurances”
means, in relation to a Ship, all policies and contracts of insurance (which
expression includes all entries of that Ship in a protection and indemnity or
war risks association) which are from time to time during the Security Period
in place or taken out or entered into by or for the benefit of the relevant
Owner (whether in the sole name of such Owner, or in the joint names of such
Owner and the Bank or otherwise) in respect of such Owner’s Ship and her
Earnings or otherwise howsoever in connection with such Ship and all benefits
thereof (including claims of whatsoever nature and return of premiums);


 


“Interest
Payment Date” means the last day of an Interest Period;


 


“Interest
Period” means:


 


(a)                                  in
relation to any Advance or Tranche, each period for the calculation of interest
in respect of such Advance or, as the case may be, Tranche, ascertained in
accordance with clauses 3.2 and 3.3; or


 


(b)                                 in
relation to the Overdraft, each seven day period commencing on a Wednesday of a
week and ending on the Tuesday of the immediately subsequent week (but, in the
event the date of the first drawing under the Overdraft Facility falls on a day
other than a Wednesday, the first Interest Period thereof shall commence on
such first day of drawing and shall end on the immediately subsequent Tuesday);


 


“Interest
Period Letter” means the letter addressed by the Borrowers to the
Bank, such letter to be substantially in the form set out in schedule 8;


 


“Iota”
means Iota Corporation, a corporation duly organised and existing under the
laws of the Republic of Liberia having its registered office at 80 Broad
Street, Monrovia, Republic of Liberia and includes its successors in title;


 


“ISPS Code”
means the International Ship and Port Facility Security Code constituted
pursuant to resolution A.924(22) of the International Maritime Organization now
set out in Chapter XI-2 of the International Convention for the Safety of Life
at Sea 1974 (as amended) as adopted by a Diplomatic conference of the
International Maritime Organisation on Maritime Security in December 2002 and
includes any amendments or extensions thereto and any regulation issued
pursuant thereto;


 


13

















 


“ISSC” means an
International Ship Security Certificate issued in respect of a Ship pursuant to
the ISPS Code;


 


“Issue Date” means, in
relation to an L/C, the date, being a Banking Day falling within the
Availability Period, on which the Borrowers request that such L/C be issued, as
specified in the Issue Request for such L/C or (as the context may require) the
date on which such L/C is actually issued;


 


“Issue Request” means, in
relation to an L/C, a notice in the form or substantially in the form of Part B
of schedule 1;


 


“Kimolos Advances” means,
together, the Kimolos Pre-delivery Advances and the Delivery Advance in respect
of the Kimolos Ship and “Kimolos Advance”
means any of them;


 


“Kimolos  Owner” means Kimolos Maritime Inc. of Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH96960 and includes its successors in title;


 


“Kimolos  Pre-delivery Advances” means, together, the
First Advance, the Second Advance and the Third Advance in respect of the
Kimolos Ship and “Kimolos Pre-delivery
Advance” means any of them;


 


“Kimolos  Ship” means the (approximately) 3,800 dwt
double-hull oil product tanker known on the date of this Agreement as Hull No.
DN-3500-5 and under construction by the Builders, to be constructed and sold by
the Builders to the Kimolos Owner pursuant to the relevant Contract and to be
registered on its Delivery Date in the ownership of the Kimolos Owner through
the relevant Registry under the laws and flag of the relevant Flag State;


 


“Kimolos Tranche” means a
tranche of the Term Loan of up to Six million six hundred and eighty thousand
Dollars ($6,680,000) comprising, and to be drawn down in, four (4) Advances
(being the Kimolos Advances);


 


“L/C”
means:


 


(a)                                  a
Documentary L/C; or


 


(b)                                 a
Transaction Related Standby L/C; or


 


(c)                                  a Direct
Credit Substitute;


 


“L/C
Valuation Date” has the meaning given to that term in clause 2.21;


 


“LIBOR” means:


 


(a)                                  in respect
of the Term Loan and any amount outstanding hereunder in Dollars or in an
Optional Currency (other than euros) but excluding any amount outstanding under
the Overdraft, and in relation to a particular period, the rate per annum
determined by the Bank to be that at which deposits in Dollars or the relevant
Optional Currency and in an amount comparable with the amount in relation to
which LIBOR is to be determined and for a period equal to the relevant period
were being offered by the Bank to prime banks in the London Interbank Market at
or about 11:00 a.m. on the Quotation Date for such period, Provided that if the Borrowers shall at
any time enter into any Transaction(s) under the Master Swap Agreement in
respect of the Term Loan, LIBOR shall (during the period when any such
Transaction(s) are effective and for an amount equal to the notional amount of
such Transaction(s)) be the rate for deposits in Dollars for a period
equivalent to such period at or about 11:00 a.m. on the Quotation Date for such
period as displayed on Reuters page LIBOR01 (British Bankers’ Association
Interest Settlement Rates) (or such other page as may replace such page LIBOR01
on such system or on any other system of the information vendor for the time
being designated by the British Bankers’ Association to calculate the BBA
Interest Settlement Rate (as defined in the


 


14

















 


British Bankers’ Association’s Recommended
Terms and Conditions (“BBAIRS”
terms) dated August, 1996) for Dollars); or


 


(b)                                 in respect
of the Overdraft and in relation to each Interest Period for the Overdraft, the
rate per annum (rounded upwards to the nearest one sixteenth (1/16th)
of one per cent (1%)) quoted by the Bank to the Borrowers as “LIBOR” for
seven-day Dollar deposits on the first day of such Interest Period;


 


“Listing”
means the successful listing of all the shares in the AMPNI Borrower on the New
York Stock Exchange;


 


“Listing Date”
means the date when the Listing has taken place;


 


“Loan”
means the aggregate principal amount owing to the Bank under this Agreement
(including, for the avoidance of doubt, the Overdraft) but excluding the
Outstandings at any relevant time;


 


“Management
Agreement” means, in relation to each Ship, the management agreement
made or (as the context may require) to be made between the relevant Owner and
the Manager in a form previously approved in writing by the Bank, providing (inter alia) for the Manager to manage that
Ship and “Management Agreements”
means any or all of them;


 


“Manager”
means, in relation to each Ship, Aegean Bunkering Services Inc. of Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH96960 or any other person appointed by the Owner of such Ship, with the prior
written consent of the Bank, as the manager of such Ship and, in each such
case, includes their respective successors in title;


 


“Manager’s
Operating Account” means an
interest bearing Dollar account of the Corporate Guarantor opened or (as the
context may require) to be opened by the Corporate Guarantor with the Bank and
includes any sub-accounts thereof and any other account designated in writing
by the Bank to be a Manager’s Operating Account for the purposes of this
Agreement;


 


“Manager’s
Undertaking” means, in relation to each Ship, the first priority
undertaking and assignment in relation to that Ship executed or (as the context
may require) to be executed by the Manager in favour of the Bank in such form
as the Bank may require in its sole discretion and “Manager’s Undertakings” means any or all of them;


 


“Margin”
means:


 


(a)                                  in
relation to the Term Loan, one point one five per cent (1.15%) per annum; or


 


(b)                                 in
relation to the Overdraft, one point two five per cent (1.25%) per annum;


 


“Master
Agreement Security Deed” means the security deed executed or (as the
context may require) to be executed by the Borrowers in favour of the Bank in
the form set out in schedule 6;


 


“Master Swap
Agreement” means the agreement made between the Bank and the
Borrowers dated as of 19 December 2006 comprising an ISDA Master Agreement, a
schedule thereto (each in the form set out in schedule 5 and any Confirmations
(as defined therein) supplemental thereto;


 


“Milos
Advances” means, together, the Milos Pre-delivery Advances and the
Delivery Advance in respect of the Milos Ship and “Milos Advance” means any of them;


 


“Milos
Owner” means Milos Maritime Inc.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall
Islands MH96960 and includes its successors in title;


 


“Milos
Pre-delivery Advances” means,
together, the First Advance, the Second Advance and the Third Advance in
respect of the Milos Ship and “Milos
Pre-delivery Advance” means any of them;


 


15

















 


“Milos
Ship” means the (approximately)
3,800 dwt double-hull oil product tanker known on the date of this Agreement as
Hull No. DN-3500-1 and under construction by the Builders, to be constructed
and sold by the Builders to the Milos Owner pursuant to the relevant Contract
and to be registered on its Delivery Date in the ownership of the Milos Owner
through the relevant Registry under the laws and flag of the relevant Flag
State;


 


“Milos
Tranche” means a tranche of the Term Loan of up to Six million six
hundred and eighty thousand Dollars ($6,680,000) comprising, and to be drawn
down in, four (4) Advances (being the Milos Advances);


 


“month”
means a period beginning in one calendar month and ending in the next calendar
month on the day numerically corresponding to the day of the calendar month on
which it started, provided that (i) if the period started on the last Banking
Day in a calendar month or if there is no such numerically corresponding day,
it shall end on the last Banking Day in such next calendar month and (ii) if
such numerically corresponding day is not a Banking Day, the period shall end
on the next following Banking Day in the same calendar month but if there is no
such Banking Day it shall end on the preceding Banking Day and “months” and “monthly” shall be construed accordingly;


 


“Mortgage”
means, in relation to each Ship, the first priority or (as the case may be)
first preferred mortgage of that Ship executed or (as the context may require)
to be executed by the relevant Owner in favour of the Bank in such form as the
Bank may require in its sole discretion and “Mortgages”
means any or all of them;


 


“Mortgaged
Ship” means, at any relevant time, any Ship which is at such time
subject to a Mortgage and/or the Earnings, Insurances and Requisition
Compensation of which are subject to an Encumbrance pursuant to the relevant
Ship Security Documents and a Ship shall, for the purposes of this Agreement,
be deemed to be a Mortgaged Ship as from whichever shall be the earlier of (a)
the date that the Deed of Covenant for such Ship shall have been executed in
accordance with this Agreement and (b) the date that the Mortgage of that Ship
shall have been executed and registered in accordance with this Agreement and
(c) (in the case of a Newbuilding only) the Drawdown Date of the Delivery
Advance for such Newbuilding, until whichever shall be the earlier of (i) the
payment in full of the amount (if any) required to be paid by the Bank pursuant
to clause 4.3 following the Total Loss of such Ship and (ii) the date on
which all moneys owing under the Security Documents have been repaid in full;


 


“Mykonos
Advances” means, together, the Mykonos Pre-delivery Advances and the
Delivery Advance in respect of the Mykonos Ship and “Mykonos Advance” means any of them;


 


“Mykonos
Owner” means Mykonos Maritime Inc.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall
Islands MH96960 and includes its successors in title;


 


“Mykonos
Pre-delivery Advances” means,
together, the First Advance, the Second Advance and the Third Advance in
respect of the Mykonos Ship and “Mykonos
Pre-delivery Advance” means any of them;


 


“Mykonos
Ship” means the (approximately)
3,800 dwt double-hull oil product tanker known on the date of this Agreement as
Hull No. DN-3500-7 and under construction by the Builders, to be constructed
and sold by the Builders to the Mykonos Owner pursuant to the relevant Contract
and to be registered on its Delivery Date in the ownership of the Mykonos Owner
through the relevant Registry under the laws and flag of the relevant Flag
State;


 


“Mykonos
Tranche” means a tranche of the Term Loan of up to Six million six
hundred and eighty thousand Dollars ($6,680,000) comprising, and to be drawn
down in, four (4) Advances (being the Mykonos Advances);


 


“Newbuilding
Owner” means:


 


(a)                                  in
relation to the Amorgos Ship, the Amorgos Owner;


 


16

















 


(b)                                 in
relation to the Kimolos Ship, the Kimolos Owner;


 


(c)                                  in
relation to the Milos Ship, the Milos Owner;


 


(d)                                 in
relation to the Mykonos Ship, the Mykonos Owner; or


 


(e)                                  in
relation to the Syros Ship, the Syros Owner,


 


and “Newbuilding
Owners” means any or all of them;


 


“Newbuildings”
means, together, the Amorgos Ship, the Kimolos Ship, the Milos Ship, the
Mykonos Ship and the Syros Ship and “Newbuilding”
means any of them;


 


“Oil Products” means oil bunkering products and lubricants used
in the maritime industry;


 


“Operator”
means any person who is from time to time during the Security Period concerned
in the operation of a Ship and falls within the definition of “Company” set out in rule 1.1.2 of the Code;


 


“Optional Currency” means the euro and any other currency (other
than Dollars) which is acceptable to the Bank and is, for the time being,
freely transferable and convertible into Dollars in the London Foreign Exchange
Market;


 


“Optional Currency L/C” means an L/C denominated in an Optional
Currency;


 


“Original Dollar Amount” means, in relation to an L/C, the
amount in Dollars which is, or is to be, outstanding (if denominated in
Dollars) or (if denominated in an Optional Currency) the amount in Dollars
which would have been outstanding if such L/C had first been issued and had
remained denominated in Dollars, reduced from time to time by reductions of
such L/C under this Agreement;


 


“Outstanding Amount” means, in relation to an L/C, the maximum
amount (whether of principal or interest or otherwise) determined by the Bank
to be that for which such L/C was issued and, in relation to an Optional
Currency L/C, the amount in Dollars last determined by the Bank as the
Outstanding Amount in accordance with clause 2.21.2, in each case less the
aggregate amount of all reductions to such L/C which have been made in
accordance with the provisions of clause 2.22;


 


“Outstandings” means, at any relevant time, the aggregate of
(a) the Outstanding Amounts for all L/Cs and (b) the aggregate principal amount
of each outstanding loan made by the Bank to the Borrowers pursuant to clause
2.23.3;


 


“Overdraft”
means, from time to time and at any relevant time, the outstanding aggregate
debit balance on the Overdraft Account;


 


“Overdraft Account” means a Dollar “open current account” of
the AMPSA Borrower opened or (as the context may require) to be opened by the
AMPSA Borrower with the Bank and includes any sub-accounts thereof and any
other account designated in writing by the Bank to be an Overdraft Account for
the purposes of this Agreement;


 


“Overdraft
Facility” means the overdraft facility of up to $50,000,000 referred
to in clause 2.7 and made available by the Bank to the Borrowers pursuant
to this Agreement;


 


“Overdraft
Facility Limit” means an amount of up to Fifty million Dollars
($50,000,000) or such other sum as may be approved in writing by the Bank in
its absolute discretion, as such amount may be reduced or cancelled by any
relevant term of this Agreement;


 


“Owner” means each of the companies listed in Part A of
schedule 3 under the column headed “Owner”,
each being a company incorporated in such jurisdiction as specified opposite
such company’s name in the column headed “Country
of Incorporation” in Part A of schedule 3 and


 


17

















 


whose registered office is as
specified opposite such company’s name in the column headed “Registered Office” in Part A of schedule 3,
it includes, for the avoidance of doubt and without limitation, each
Newbuilding Owner, each Collateral Owner and each Additional Owner and, in
relation to a Ship, means the company set out opposite the name of such Ship in
the column headed “Owning Company”
in Part B of schedule 3, it includes each Owner’s successors in title and “Owners” means any or all of them;


 


“Owner’s Guarantee” means, in relation to each Owner and its
Ship, the corporate guarantee executed or (as the context may require) to be
executed by such Owner in favour of the Bank in such form as the Bank may in
its sole discretion require and “Owner’s
Guarantees” means any or all of them;


 


“Participating Member State” means each
state so described in any EMU Legislation;


 


“Permitted
Encumbrance” means any Encumbrance in favour of the Bank created
pursuant to the Security Documents and Permitted Liens;


 


“Permitted
Liens” means, in relation to each Ship, any lien on that Ship for
master’s, officer’s or crew’s wages outstanding in the ordinary course of
trading, any lien for salvage and any ship repairer’s or outfitter’s possessory
lien for a sum not (except with the prior written consent of the Bank)
exceeding the relevant Casualty Amount;


 


“Pollutant”
means and includes pollutants, contaminants, toxic substances, oil as defined
in the United States Oil Pollution Act of 1990 and all hazardous substances as
defined in the United States Comprehensive Environmental Response, Compensation
and Liability Act 1980;


 


“Pre-delivery
Advances”:


 


(a)                                  in
relation to  the Amorgos Ship and
the Amorgos Tranche, means the Amorgos Pre-delivery Advances;


 


(b)                                 in
relation to  the Kimolos Ship and
the Kimolos Tranche, means the Kimolos Pre-delivery Advances;


 


(c)                                  in
relation to  the Milos Ship and
the Milos Tranche, means the Milos Pre-delivery Advances;


 


(d)                                 in
relation to  the Mykonos Ship and
the Mykonos Tranche, means the Mykonos Pre-delivery Advances; or


 


(e)                                  in
relation to  the Syros Ship and
the Syros Tranche, means the Syros Pre-delivery Advances,


 


and “Pre-delivery
Advance” means any of them;


 


“Pre-delivery
Security Assignment” means, in relation to each Newbuilding, the
assignment of the Contract, the Refund Guarantees and the Supervision Contract
for such Newbuilding executed or (as the context may require) to be executed by
the relevant Newbuilding Owner in favour of the Bank in such form as the Bank
may in its sole discretion require;


 


“Qualifying Receivables” means Receivables which, at the
relevant time:


 


(a)                                  have been
assigned to the Bank pursuant to the Receivables Assignment;


 


(b)                                 have been
included in a Schedule of Receivables submitted to the Bank pursuant to clause
2.1.12 or clause 8.2.7, each together with the copies of documents,  receipt(s) and invoice(s) relating to such
Receivables required to be submitted pursuant to clause 2.12 and:


 


18

















 


(c)                                  (i) in the
case of Receivables due in respect of lubricants, are payable within 60 days of
the date of the relevant receipt and are not overdue for payment; and


 


(ii) in the case of Receivables due in respect
of oil bunkering, are payable within 30 days of the date of the relevant
receipt and are not overdue for payment by more than 15 days;


 


“Quotation
Date” means, in relation to any period for which an interest rate is
to be determined under any provision of this Agreement or any other Security
Documents:


 


(a)                                  in the
case of deposits in Dollars or an Optional Currency (other than euros), the day
on which quotations would ordinarily be given by leading banks in the London
Interbank Market for deposits in the relevant currency to which such rate is to
be determined for delivery on the first day of that period; and


 


(b)                                 in the
case of deposits in euros, the Target Day on which quotations would ordinarily
be given by leading banks in the European Interbank Market for deposits in
euros for delivery on the first day of that period;


 


“Receivables” means sums due and owing at any relevant time to
the AMPSA Borrower by its customers in respect of oil bunkering and/or
lubricant sales;


 


“Receivables Assignment” means an assignment of the Receivables
executed or (as the context may require) to be executed by the AMPSA Borrower
in favour of the Bank in such form as the Bank may in its sole discretion
require;


 


“Refund
Guarantee Assignment Consent and Acknowledgement” means, in relation
to each Refund Guarantee in respect of a Newbuilding, an acknowledgement of
notice of, and consent to, the assignment in respect of that Refund Guarantee
to be given by the relevant Refund Guarantor who issued such Refund Guarantee
in the form scheduled to the Pre-delivery Security Assignment for such
Newbuilding and “Refund Guarantee Assignment
Consents and Acknowledgements” means any or all of them;


 


“Refund
Guarantees” means, in relation to each Newbuilding, together, each
letter of guarantee issued or (as the context may require) to be issued from
time to time by a Refund Guarantor in respect of certain of the Builders’
obligations under the Contract relevant to such Newbuilding, whether pursuant
to that Contract or any agreement supplemental to that Contract, and any
extensions, renewals or replacements to or of any such guarantee(s), in each
case in form and substance acceptable to the Bank in its sole discretion and “Refund Guarantee” means any of them;


 


“Refund
Guarantor” means Bank of Communications, Fuzhou Branch of Fuzhou,
People’s Republic of China and/or any other bank or financial institution
acceptable to the Bank in its sole discretion and appointed by the Builders to
issue a Refund Guarantee and includes their respective successors in title and
“Refund Guarantors” means any or
all of them;


 


“Registry”
means, in relation to a Ship, any registrar, consul, commissioner or
representative of the relevant Flag State who is duly authorised and empowered
to register such Ship, the relevant Owner’s title to such Ship and the relevant
Mortgage under the laws and flag of the relevant Flag State;


 


“Regulatory
Agency” means the Government Entity or other organisation in a Flag
State which has been designated by the Government of that Flag State to
implement and/or administer and/or enforce the provisions of the Code;


 


19

















 


“Related
Company” means:


 


(a)                                  of the Bank, means any Subsidiary of the
Bank, any company or other entity of which the Bank is a Subsidiary and any
Subsidiary of any such company or entity; or


 


(b)                                 of a Security Party, means any company or
other entity which is engaged or active in the bunkering business or in the provision of
bunkering services and which is:


 


(i)                                     a Subsidiary of the relevant Security Party;
or


 


(ii)                                  any company or other entity (“holding company”) of which such Security
Party is a Subsidiary; or


 


(iii)                               any Subsidiary (other than such Security
Party) of any such holding company;


 


“Relevant
Jurisdiction” means any jurisdiction in which or where any Security
Party is incorporated, resident, domiciled, has a permanent establishment,
carries on, or has a place of business or is otherwise effectively connected;


 


“Relevant
Party” means the Borrowers, the Borrowers’ Related Companies, the
other Security Parties (other than the Builders and the Refund Guarantors) and
their respective Related Companies including, for the avoidance of doubt, all
the members of the Group from time to time;


 


“Relevant
Ship” means the Ships and any other vessel from time to time
(whether before or after the date of this Agreement) owned, managed or crewed
by, or chartered to, any Relevant Party;


 


“Repayment
Dates” means, in relation to each Tranche (and subject to
clause 6.3), the First Repayment Date in respect such Tranche and each of
the dates falling at three (3) monthly intervals after such First Repayment
Date up to and including the date falling one hundred and forty one (141)
months after such First Repayment Date;


 


“Requisition
Compensation” means, in relation to a Ship, all sums of money or
other compensation from time to time payable during the Security Period by
reason of the Compulsory Acquisition of such Ship;


 


“Reset Date” has the meaning given in clause 2.13;


 


“Schedule of Receivables” means a Schedule in the form of a
schedule to the Receivables Assignment (or in such other form as the Bank may
approve) and submitted or to be submitted to the Bank pursuant to clause 2.12
or clause 8.2.7;


 


“Second
Advance” means, in relation to each Newbuilding, an Advance of up to
One million two hundred and fifty two thousand five hundred Dollars
($1,252,500) made or (as the context may require) to be made available to the
Borrowers for the purpose of (a) financing or refinancing in full the payment
of the third instalment of the Contract Price for the relevant Newbuilding
falling due before the Delivery Date of the relevant Newbuilding as set out in
schedule 4 and (b) (as to the balance) refinancing the payment of any other
part of the Construction Cost for the relevant Newbuilding previously made by
the relevant Newbuilding Owner and not already financed or refinanced under the
terms of this Agreement and “Second Advances”
means any or all of them;


 


“Security
Documents” means this Agreement, the Master Swap Agreement, the
Master Agreement Security Deed, the Corporate Guarantee, the Owner’s
Guarantees, the Mortgages, the Deeds of Covenant, the Pre-delivery Security
Assignments, the Contract Assignment Consents and Acknowledgements, the Refund
Guarantee Assignment Consents and Acknowledgements, the Supervision Contract
Assignment Consents and Acknowledgements, the Manager’s Undertakings, the
Receivables Assignment, any Schedule of Receivables, the Account Pledges and
any other agreement or document as may have been or shall from time to


 


20

















 


time after the date of this Agreement be
executed to guarantee and/or secure all or any part of the Aggregate
Liabilities, interest thereon and other moneys from time to time owing by the
Borrowers or either of them or any other Security Party pursuant to this
Agreement and/or the Master Swap Agreement and/or any other Security Document
(whether or not any such document also secures moneys from time to time owing
pursuant to any other document or agreement);


 


“Security
Party” means each Borrower, the Corporate Guarantor, each Owner, the
Manager, each Refund Guarantor, Iota and each Builder or any other person who
may at any time be a party to any of the Security Documents (other than the
Bank);


 


“Security
Period” means the period commencing on the date hereof and
terminating upon the later of (a) the date when there shall be no Aggregate
Liabilities and the security created by the Security Documents shall have been
discharged by payment of all monies payable thereunder, whether actually or
contingently and (b) the latest Expiry Date;


 


“Security
Requirement” means the amount in Dollars (as certified by the Bank
whose certificate shall, in the absence of manifest error, be conclusive and
binding on the Borrowers and the Bank) which is, at any relevant time, One hundred
and twenty per cent (120%) of the aggregate of (a) the Actual Exposure and (b)
the cost (if any) (as certified by the Bank whose certificate shall in the
absence of manifest error be conclusive and binding on the Borrowers and the
Bank) of terminating any Transactions entered into pursuant to the Master Swap
Agreement;


 


“Security
Value” means the amount in Dollars (as certified by the Bank whose
certificate shall, in the absence of manifest error, be conclusive and binding
on the Borrowers and the Bank) which is, at any relevant time, the aggregate of
(a) the market value of the Mortgaged Ships as most recently determined in
accordance with clause 8.2.2 and (b) the market value of any additional
security for the time being actually provided to the Bank pursuant to
clause 8.2 and (c) the amount standing to the credit of the AMPNI
Operating Account for the purposes of compliance with clause 8.1.14 and (d) any
amount standing to the credit of the Cash Collateral Account;


 


“Settlement Amount” means, in relation to each demand made
under an L/C, the amount payable by the Bank to the Beneficiary in respect of
such demand, in Dollars or, in the case of an L/C issued in an Optional
Currency, in such Optional Currency;


 


“Settlement Date” means, in relation to each demand made under
an L/C, the date on which payment of the Settlement Amount is due to the
Beneficiary in respect of the demand;


 


“Ship” means each of the motor vessels listed in Part B of
schedule 3 under the column headed “Name/Hull
Number”, each registered or (in the case of each Newbuilding and
each Additional Ship) to be registered on its Delivery Date, in the name and
under the ownership of the relevant Owner under the relevant Flag State, in
each case with the IMO number (if any) specified opposite such vessel’s name in
the column headed “IMO No.” in
Part B of schedule 3 and it includes, for the avoidance of doubt and without
limitation, each Newbuilding, each Collateral Ship and each Additional Ship,
and “Ships” means any or all of
them;


 


“Ship Security
Documents” means, in relation to a Ship, the Owner’s Guarantee, the
Mortgage, the Deed of Covenant and the Manager’s Undertaking relevant to such
Ship;


 


“SMC”
means a safety management certificate issued in respect of a Ship in accordance
with rule 13 of the Code;


 


“Subsidiary”
of a person means any company or entity directly or indirectly controlled by
such person, and for this purpose “control”
means either the ownership of more than fifty per cent (50%) of the voting
share capital (or equivalent rights of ownership) of such company or entity or
the power to direct its policies and management, whether by contract or
otherwise;


 


21

















 


“Supervision
Contract” means, in relation to each Newbuilding, the contract dated
10 February 2005 made between the relevant Newbuilding Owner and Iota as may be
amended, supplemented, varied, replaced or novated from time to time with the
prior written consent of the Bank, relating to the design, building,
supervision, representation, procurement of machinery and supplies and turn-key
delivery of the relevant Newbuilding and “Supervision
Contract” means any or all of them;


 


“Supervision
Contract Assignment Consent and Acknowledgement” means, in relation
to each Newbuilding, the acknowledgement of notice of, and consent to, the
assignment in respect of the Supervision Contract relevant to such Newbuilding
to be given by Iota in the form scheduled to the Pre-delivery Security
Agreement Assignment for such Newbuilding and “Supervision Contract Assignment Consent and Acknowledgements”
means any or all of them;


 


“Supervision
Cost” means, in relation to each Newbuilding, One million five
hundred and fifty thousand Dollars ($1,550,000) or such other lesser sum in
Dollars as may be payable by the relevant Newbuilding Owner to Iota pursuant to
the Supervision Contract relevant to such Newbuilding, as the cost for the
services provided by Iota thereunder and “Supervision
Costs” means any or all of them;


 


“Syros
Advances” means, together, the Syros Pre-delivery Advances and the
Delivery Advance in respect of the Syros Ship and “Syros  Advance”
means any of them;


 


“Syros
Owner” means Syros Maritime Inc.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall
Islands MH96960 and includes its successors in title;


 


“Syros
Pre-delivery Advances” means,
together, the First Advance, the Second Advance and the Third Advance in
respect of the Syros Ship and “Syros
Pre-delivery Advance” means any of them;


 


“Syros
Ship” means the (approximately)
3,800 dwt double-hull oil product tanker known on the date of this Agreement as
Hull No. DN-3500-6 and under construction by the Builders, to be constructed
and sold by the Builders to the Syros Owner pursuant to the relevant Contract
and to be registered on its Delivery Date in the ownership of the Syros Owner
through the relevant Registry under the laws and flag of the relevant Flag
State;


 


“Syros
Tranche” means a tranche of the Term Loan of up to Six million six
hundred and eighty thousand Dollars ($6,680,000) comprising, and to be drawn
down in, four (4) Advances (being the Syros Advances);


 


“Target Day” means a day on which the Trans-European Automated
Real Time Gross Settlement Express Transfer System is open;


 


“Taxes”
includes all present and future taxes, levies, imposts, duties, fees or charges
of whatever nature together with interest thereon and penalties in respect
thereof and “Taxation” shall be
construed accordingly;


 


“Termination
Date” means:


 


(a)                                  in
relation to the Amorgos First Advance, 31 January 2007;


 


(b)                                 in
relation to the Amorgos Second Advance, 31 January 2007;


 


(c)                                  in
relation to the Amorgos Third Advance, 30 April 2007;


 


(d)                                 in
relation to the Amorgos Delivery Advance, 30 September 2007;


 


(e)                                  in
relation to the Kimolos First Advance, 31 January 2007;


 


(f)                                    in
relation to the Kimolos Second Advance, 15 February 2007;


 


22














 


(g)           in relation to the
Kimolos Third Advance, 30 June 2007;


 


(h)           in relation to the
Kimolos Delivery Advance, 30 October 2007;


 


(i)            in relation to the
Milos First Advance, 31 January 2007;


 


(j)            in relation to the
Milos Second Advance, 31 January 2007;


 


(k)           in relation to the
Milos Third Advance, 31 January 2007;


 


(l)            in relation to the
Milos Delivery Advance, 28 February 2007;


 


(m)          in relation to the
Mykonos First Advance, 28 February 2007;


 


(n)           in relation to the
Mykonos Second Advance, 30 June 2007;


 


(o)           in relation to the
Mykonos Third Advance, 10 November 2007;


 


(p)           in relation to the
Mykonos Delivery Advance, 10 March 2008;


 


(q)           in relation to the
Syros First Advance, 31 January 2007;


 


(r)            in relation to the
Syros Second Advance, 31 March 2007;


 


(s)           in relation to the
Syros Third Advance, 14 September 2007; or


 


(t)            in relation to the
Syros Delivery Advance, 31 January 2008,


 


or, in each such case, such later date as the Borrowers may request and
the Bank may in its absolute discretion consent to;


 


“Term Loan” means the
aggregate principal amount owing to the Bank under this Agreement at any
relevant time under the Advances;


 


“Third Advance” means, in
relation to each Newbuilding, an Advance of up to One million two hundred and
fifty two thousand five hundred Dollars ($1,252,500) made or (as the context
may require) to be made available to the Borrowers for the purpose of financing
or refinancing in part the payment of the fourth instalment of the Contract
Price for the relevant Newbuilding and the third instalment of the Supervision
Cost for the relevant Newbuilding, each falling due before the Delivery Date of
the relevant Newbuilding as set out in schedule 4;


 


“Third Stage” means the
third stage of European economic and monetary union pursuant to the Treaty on
European Union;


 


“Total Loss” means, in
relation to a Ship:


 


(a)           actual, constructive,
compromised or arranged total loss of such Ship; or


 


(b)           the Compulsory
Acquisition of such Ship; or


 


(c)           the hijacking, theft,
condemnation, capture, seizure, arrest, detention or confiscation of such Ship
(other than where the same amounts to the Compulsory Acquisition of such Ship)
by any Government Entity, or by persons acting or purporting to act on behalf
of any Government Entity, unless such Ship be released and restored to the
relevant Owner (or, in the case of a Newbuilding prior to its Delivery, the
Builders) from such hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation within thirty (30) days after the occurrence thereof;


 


23

















 


“Tranche”
means:


 


(a)           in relation to the
Amorgos Ship, the Amorgos Tranche;


 


(b)           in relation to the
Kimolos Ship, the Kimolos Tranche;


 


(c)           in relation to the
Milos Ship, the Milos Tranche;


 


(d)           in relation to the
Mykonos Ship, the Mykonos Tranche; or


 


(e)           in relation to the
Syros Ship, the Syros Tranche,


 


and “Tranches”
means any or all of them;


 


“Transaction”
means a Transaction as defined in the introductory paragraph of the Master
Swap Agreement;


 


“Transaction
Related Standby L/C”  means a
letter of credit, letter of guarantee or bank guarantee issued or to be issued
by the Bank in favour of a Beneficiary in such form as is agreed between the
Bank and the AMPSA Borrower which relates directly to the purchase of Oil
Products by the AMPSA Borrower and which imposes on the Bank an obligation to
pay (a) only upon default in payment by the AMPSA Borrower under its contract
with the supplier of such Oil Products and (b) upon presentation of specified
documents as specified in such letter of credit, letter of guarantee or bank
guarantee (as the case may be);


 


“Transferee”
has the meaning ascribed thereto in clause 15.4;


 


“Treaty on
European Union” means the Treaty of Rome of 25 March 1957, as
amended by the Single European Act 1986 and the Maastricht Treaty of 7 February
1992; and


 


“Underlying
Documents” means, together, the Contracts, the Refund Guarantees,
the Supervision Contracts, any Additional Contracts and the Management
Agreements and “Underlying Document”
means any of them.


 


1.3           Headings


 


Clause headings and the table of contents
are inserted for convenience of reference only and shall be ignored in the
interpretation of this Agreement.


 


1.4           Construction of
certain terms


 


In this Agreement, unless the context otherwise
requires:


 


1.4.1       references
to clauses and schedules are to be construed as references to
clauses of, and schedules to, this Agreement and references to this
Agreement include its schedules;


 


1.4.2       references
to (or to any specified provision of) this Agreement or any other document
shall be construed as references to this Agreement, that provision or that
document as in force for the time being and as amended in accordance with terms
thereof, or, as the case may be, with the agreement of the relevant parties;


 


1.4.3       references
to a “regulation” include any
present or future regulation, rule, directive, requirement, request or
guideline (whether or not having the force of law) of any agency, authority,
central bank or government department or any self-regulatory or other national
or supra-national authority;


 


1.4.4       words
importing the plural shall include the singular and vice versa;


 


1.4.5       references
to a time of day are to London time;


 


1.4.6       references
to a person shall be construed as references to an individual, firm, company,
corporation, unincorporated body of persons or any Government Entity;


 


24

















 


1.4.7       references
to a “guarantee” include
references to an indemnity or other assurance against financial loss including,
without limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any Indebtedness and “guaranteed” shall be construed accordingly;


 


1.4.8       references
to any enactment shall be deemed to include references to such enactment as
re-enacted, amended or extended; and


 


1.4.9       references
to a “demand” include any
requirement to make payment in accordance with the terms of an L/C.


 


2              The Commitment and the Term Loan; the Overdraft and the Guarantee
Facility


 


2.1           Agreement to lend
Term Loan


 


The Bank, relying upon each of the
representations and warranties in clause 7, agrees to lend to the
Borrowers, jointly and severally, upon and subject to the terms of this
Agreement, the principal sum of up to Thirty three million four hundred
thousand Dollars ($33,400,000) in twenty (20) Advances comprising five (5)
Tranches, namely, the Amorgos Tranche, the Kimolos Tranche, the Milos Tranche,
the Mykonos Tranche and the Syros Tranche.


 


2.2           Drawdown of Advances


 


Subject to the terms and conditions of this
Agreement, each Advance shall be made following receipt by the Bank from the
Borrowers of a Drawdown Notice not later than 10:00 a.m. on the second Banking
Day before the date, which shall be a Banking Day falling within the relevant
Drawdown Period, on which such Advance is intended to be made. A Drawdown
Notice shall be effective on actual receipt by the Bank and, once given, shall,
subject as provided in clause 3.6.1, be irrevocable.


 


2.3           Timing and
limitations of Term Loan, Tranches and Advances


 


2.3.1        The
aggregate amount of the Term Loan shall not exceed the lower of (a) Thirty
three million four hundred thousand Dollars ($33,400,000) and (b) eighty per
cent (80%) of the aggregate Construction Costs of all the Newbuildings.


 


2.3.2        The
aggregate amount of all the Advances for a Newbuilding shall not exceed the
lower of (a) Six million six hundred and eighty thousand Dollars ($6,680,000)
and (b) eighty per cent (80%) of the Construction Cost of the relevant
Newbuilding.


 


2.3.3        The amount
of each Pre-delivery Advance shall be:


 


(a)   in the
case of each First Advance, not more than $417,500;


 


(b)   in the
case of each Second Advance, not more than $1,252,500; and


 


(c)   in the
case of each Third Advance, not more than $1,252,500.


 


2.3.4        Each First
Advance:


 


(a)   shall be
applied in or towards payment to the Builders and, as the case may be, Iota of
part of the second instalment of the Contract Price and part of the second
instalment of the Supervision Cost (respectively) for the Newbuilding relevant
to such Advance;


 


(b)   shall be
made when both such instalments have become due and payable, as specified in
the second and third column, respectively, of schedule 4 opposite the relevant
First Advance; and


 


25

















 


(c)   shall be
paid by the Bank to the Builders and Iota, respectively, unless the relevant
Newbuilding Owner has already paid either such instalment to the Builders or
(as the case may be) Iota when it was due, in which case the relevant First
Advance (or part thereof) shall be advanced to the Borrowers or the relevant
Newbuilding Owner in refinancing of such payment.


 


2.3.5        Each
Second Advance:


 


(a)   shall be
applied (i) first, in or towards payment to the Builders of the full amount of
the third instalment of the Contract Price for the Newbuilding relevant to such
Advance and (ii) secondly, as to its balance in refinancing of any other part
of the Construction Cost of the relevant Newbuilding previously paid by the
relevant Newbuilding Owner when it was due and not financed or refinanced by
this Agreement;


 


(b)   shall be
made when the instalment referred to in paragraph 2.3.5(a)(i) above has become
due and payable, as specified in the second column of schedule 4 opposite the
relevant Second Advance; and


 


(c)   (except
for the part of the relevant Second Advance referred to in paragraph 2.3.5
(a)(ii) above, which shall be paid directly to the Borrowers or the relevant
Newbuilding Owner) shall be paid by the Bank to the Builders, unless the
relevant Newbuilding Owner has already paid the relevant third instalment to
the Builders when it was due, in which case the relevant Second Advance (or
part thereof) shall be advanced to the Borrowers or the relevant Newbuilding
Owner in refinancing of such payment.


 


2.3.6        Each Third
Advance:


 


(a)   shall be
applied in or towards payment to the Builders and, as the case may be, Iota of
part of the fourth instalment of the Contract Price and part of the third
instalment of the Supervision Cost (respectively) for the Newbuilding relevant
to such Advance;


 


(b)   shall be
made when both such instalments have become due and payable, as specified in
the second and third column, respectively, of schedule 4 opposite the relevant
Third Advance; and


 


(c)   shall be
paid by the Bank to the Builders and Iota, respectively, unless the relevant
Newbuilding Owner has already paid either such instalment to the Builders or
(as the case may be) Iota when it was due, in which case the relevant Third
Advance (or part thereof) shall be advanced to the Borrowers or the relevant
Newbuilding Owner in refinancing of such payment.


 


2.3.7        Each
Delivery Advance:


 


(a)   shall not
exceed the lower of:


 


(i)    Three million seven hundred
and fifty seven thousand five hundred Dollars ($3,757,500);


 


(ii)   the amount in Dollars which,
when added to the aggregate amount of the Pre-delivery Advances for the
relevant Newbuilding actually drawn down, will produce a figure equal to eighty
per cent (80%) of the Construction Cost of that Newbuilding;


 


(iii)  the amount in Dollars which,
when added to the aggregate amount of the Pre-delivery Advances for the
relevant Newbuilding actually drawn down, will produce a figure equal to eighty
per cent (80%) of the market value of that Newbuilding determined in accordance
with the valuation of such Newbuilding obtained pursuant to schedule 2, Part 5,
paragraph 19; and


 


26

















 


(iv)  the amount in Dollars which,
when added to the aggregate amount of the Pre-delivery Advances for the
relevant Newbuilding actually drawn down, will produce a total figure of
$6,680,000;


 


(b)   shall be
applied (i) first, in or towards payment to the Builders and, as the case may
be, Iota of part of the final instalment of the Contract Price and the final
instalment of the Supervision Cost (respectively) for the Newbuilding relevant
to such Advance and (ii) secondly, as to its balance in refinancing of any
other part of the Construction Cost of the relevant Newbuilding previously paid
by the relevant Newbuilding Owner when it was due and not financed or
refinanced by this Agreement;


 


(c)   shall be
made when both of the instalments referred to in paragraph 2.3.7(b)(i) above
have become due and payable; and


 


(d)   (except
for the part of the relevant Delivery Advance referred to in paragraph
2.3.7(b)(ii) above, which shall be paid directly to the Borrowers or the
relevant Newbuilding Owner) shall be paid by the Bank to the Builders and Iota,
respectively, unless the relevant Newbuilding Owner has already paid either
such instalment to the Builders or (as the case may be) Iota when it was due,
in which case the relevant Delivery Advance (or part thereof) shall be advanced
to the Borrowers or the relevant Newbuilding Owner in refinancing of such
payment.


 


2.4           Availability of
Commitment


 


Upon receipt of a Drawdown Notice for an
Advance complying with the terms of this Agreement the Bank shall, subject to
the provisions of clause 9, on the date specified in the Drawdown Notice
make the relevant Advance available to the Borrowers in accordance with
clause 6.2. The Borrowers acknowledge that payment of any Advance to Iota
or, as the case may be, the Builders or the relevant Newbuilding Owner or
either Borrower or any of such persons, in accordance with clause 6.2
shall satisfy the obligation of the Bank to lend that Advance to the Borrowers
under this Agreement.


 


2.5           Termination of
Commitment


 


Any part of the Commitment undrawn and
uncancelled by the relevant Termination Date, shall thereupon be automatically
cancelled.


 


2.6           Application of Term
Loan proceeds


 


Without prejudice to the Borrowers’ obligations
under clause 8.1.3, the Bank shall have no responsibility for the
application of proceeds of the Term Loan or any part thereof by the Borrowers
or either of them.


 


2.7           Agreement to make
available Overdraft Facility


 


Subject to the terms and conditions of this
Agreement, and in reliance on the representations and warranties set out in
clause 7 and the representations and warranties of the other Security
Parties in the other Security Documents, the Bank agrees to make available to
the Borrowers, jointly and severally, for the Availability Period an overdraft
facility for the purposes described in clause 1.1.2 in an amount not
exceeding at any one time the applicable Overdraft Facility Limit.


 


2.8           Authorisations


 


Each drawing may be made only upon receipt by
the Bank of a written request (whether in the form of a cheque or any other
written (including electronic) form agreed between the Bank and the AMPSA
Borrower from time to time) by the AMPSA Borrower from time to time, duly
signed by a person who, in the Bank’s discretion, is duly authorised by the
AMPSA Borrower to request the debiting of the Overdraft Account.


 


27

















 


2.9           Drawings; joint and
several obligations


 


2.9.1        Subject to
the terms and conditions of this Agreement, the Bank shall advance each drawing
in respect of the Overdraft to the Borrowers, jointly and severally, on the
date requested by the AMPSA Borrower in accordance with clause 2.8 by (a)
debiting the amount thereof to the Overdraft Account and (b) paying the
proceeds thereof in accordance with the AMPSA Borrower’s written instructions.


 


2.9.2        For the
avoidance of doubt, it is hereby agreed and acknowledged that, notwithstanding
that each amount made available pursuant to the Overdraft Facility may be drawn
following a request by the AMPSA Borrower alone and shall be debited to the
Overdraft Account (being a bank account in the name of the AMPSA Borrower
alone), each such amount shall be considered advanced to both Borrowers jointly
and severally. Accordingly, the Borrowers shall be jointly and severally liable
for the repayment of each such amount and the payment of interest accruing thereon
in accordance with the terms of this Agreement.


 


2.10         Terms of
Overdraft Facility


 


2.10.1      Drawings
under the Overdraft Facility may only be made on a Banking Day falling within
the Availability Period.


 


2.10.2      No drawing
shall be made under the Overdraft Facility unless one or more Advances have
been drawn down.


 


2.10.3      The
Borrowers may repay amounts outstanding in respect of the Overdraft at any time
by placing funds to the credit of the Overdraft Account.


 


2.10.4      The
Overdraft Facility shall be revolving, so that sums repaid in respect of the
Overdraft may be reborrowed provided always that the Overdraft shall never
exceed the Overdraft Facility Limit.


 


2.10.5      No drawing
on the Overdraft Account is permitted if such drawing would cause (a) the
Overdraft to exceed the Overdraft Facility Limit or (b) the Borrowers to be in
breach of clause 8.2.1 or clause 8.2.7.


 


2.10.6      On the
earlier of (a) the date on which the Term Loan is fully repaid or prepaid and
(b) the Final Maturity Date, the Borrowers shall repay the Overdraft in full.


 


2.10.7      On the
last day of the Availability Period:


 


(a)   the
Overdraft Facility shall cease to be available and no drawings thereunder may
be made thereafter; and


 


(b)   the
Overdraft Facility Limit shall be reduced to zero.


 


2.10.8      Without
prejudice to the Borrowers’ obligations under clause 8.1.3, the Bank shall
have no responsibility for the application of proceeds of the Overdraft or any
part thereof by the Borrowers or either of them.


 


2.11         Guarantee
Facility


 


2.11.1      Subject to
the terms and conditions of this Agreement, and in reliance on the
representations and warranties set out in clause 7 and the representations and
warranties of the other Security Parties in the other Security Documents, the
Bank agrees to make available to the Borrowers, jointly and severally for the
Availability Period, a multi-currency revolving guarantee and letter of credit
facility not exceeding the Guarantee Facility Commitment.


 


2.11.2      The
Borrowers undertake with the Bank to use each L/C only for the purpose stated
in clause 1.1.3.


 


2.11.3      The
Guarantee Facility shall terminate on the last day of the Availability Period.


 


28

















 


2.12         Submission
of Schedule of Receivables


 


If the Borrowers elect to remedy any deficiency
notified to them by the Bank pursuant to clause 8.2.7(a) by submitting a
Schedule of Receivables, the Borrowers shall submit to the Bank, within the
time-limit provided for in such clause 8.2.7(a):


 


2.12.1      a Schedule
of Receivables duly executed as a deed by the AMPSA Borrower and setting out
details of the Receivables which the Borrowers wish to provide to the Bank as
security under the Receivables Assignment for the purposes of clause 8.2.7(a),
provided that:


 


(a)   no more
than five per cent (5%) of the aggregate of all such Receivables set out in
such Schedule of Receivables shall be due from any one Customer (except the
United States Navy); and


 


(b)   such
Receivables shall not have been contained in a Schedule of Receivables
previously delivered under this Agreement;


 


2.12.2      in respect
of each Receivable contained in a Schedule of Receivables submitted to the Bank
under clause 2.12.1, a copy of the bunkering confirmation issued by the AMPSA
Borrower to the relevant Customer together with a copy of the Customer’s
confirmation of such bunkering confirmation, together evidencing the contract
entered into between the AMPSA Borrower and the Customer in relation to such
Receivable and complying with the following requirements:


 


(a)   such
bunkering confirmation when read together with the relevant Customer’s
confirmation shall include, whether expressly or by incorporation, all the
terms of such contract between the AMPSA Borrower and the Customer;


 


(b)   in the
case of Receivables relating to oil bunkers and/or lubricants supplied to the
Customer by the AMPSA Borrower or its employees, such bunkering confirmation
when read together with the relevant Customer’s confirmation shall refer to and
incorporate the AMPSA Borrower’s standard terms and conditions;


 


(c)   in the
case of Receivables relating to oil bunkers and/or lubricants supplied to the
Customer by any parties other than the AMPSA Borrower or its employees, such
bunkering confirmation shall contain the following wording:


 


“AMP’s
standard terms and conditions to apply, except as regards operational matters
at the place of delivery, in relation to which supplier’s terms and conditions
shall apply”;


 


2.12.3      in respect
of each Receivable contained in a Schedule of Receivables submitted to the Bank
under clause 2.12.1, a copy of the receipt for the oil bunkers and/or
lubricants supplied (as relevant) complying with the following requirements:


 


(a)   such
receipt shall have been duly signed by the master or chief engineer on behalf
of the vessel to which the AMPSA Borrower has supplied such oil bunkers and/or
lubricants (as relevant) as evidence of the relevant Customer’s irrevocable
payment obligations, free from any rights of set-off or other deduction;


 


(b)   in the
case of oil bunkering receipts or lubricant sales receipts issued by any
parties other than the AMPSA Borrower or its employees, such receipt shall:


 


(i)    contain an express
acknowledgement to the effect that the relevant third party has supplied the
relevant Receivables to the Customer for and on behalf of the AMPSA Borrower;
and


 


(ii)   set out the number of the
relevant bunkering confirmation to which such receipt relates;


 


(c)   in the
case of oil bunkering receipts, such receipt shall be dated no more than 45
days before the relevant Issue Date and shall have a payment tenor of no more
than 30 days;


 


29

















 


(d)   in the
case of lubricant sales receipts, such receipt shall be dated no more than 60
days before the relevant Utilisation Date and shall have a payment tenor of no
more than 60 days;


 


2.12.4      for each
copy of a receipt delivered under clause 2.12.3, a certificate duly signed by
an officer of the AMPSA Borrower, certifying that the copy of the relevant
receipt is true and up to date; and


 


2.12.5      for each
copy of a receipt delivered under clause 2.12.3, a carbon copy of the relevant
invoice issued to the relevant Customer, complying with the following
requirements:


 


(a)   in the
case of oil bunkering invoices, such invoice shall have a payment tenor of no more
than 30 days as of the date of the relevant receipt; and


 


(b)   in the
case of lubricant sales invoices, such invoice shall have a payment tenor of no
more than 60 days as of the date of the relevant receipt.


 


2.13         Reset Date


 


Reset Date shall be each date when the
Borrowers, after the Bank has served a notice in accordance with clause
8.2.7(a) notifying them of a deficiency thereunder, submit a Schedule of
Receivables pursuant to clause 2.12 in order to remedy the relevant deficiency
notified by the Bank.


 


2.14         Issuance
of L/Cs


 


Subject to the fulfilment of the conditions
precedent contained in clause 9 and the conditions contained in clause 2.15,
the Borrowers may request the issuance of an L/C by ensuring that the Bank
receives a completed Issue Request not later than 11.00 a.m. (Piraeus time) two
(2) Banking Days prior to the intended Issue Date.


 


2.15         Availability
of L/Cs


 


The conditions referred to in clause 2.14 are
that:


 


2.15.1      an Issue
Date has to be a Banking Day during the Availability Period;


 


2.15.2      each L/C
shall be denominated in Dollars or in an Optional Currency;


 


2.15.3      the
Original Dollar Amount of a L/C shall be not less than $1,000,000 (or such
other amount as is agreed by the Bank) or such other amount as is available in
accordance with clause 2.15.4;


 


2.15.4      the total
amount of the Outstandings and the Outstanding Amount of the L/C then to be
made shall not exceed the lower of:


 


(a)   the
Guarantee Facility Commitment; and


 


(b)   such
amount as shall ensure that the Borrowers are in compliance with clauses 8.2.1
and 8.2.7 and shall remain in compliance with clauses 8.2.1 and 8.2.7 after the
issuance of the relevant L/C;


 


2.15.5      each L/C
shall specify an Expiry Date and that Expiry Date shall be a date falling not
later than the Final Maturity Date; and


 


2.15.6      no L/C
shall be issued unless at least one or more Advances have been drawn down.


 


2.16         Issue
Request


 


2.16.1      Each Issue
Request must be signed by a duly authorised signatory of the AMPSA Borrower
and, once served, the Issue Request cannot be revoked without the prior consent
of the Bank.


 


30

















 


2.16.2      For the
avoidance of doubt, it is hereby agreed and acknowledged that, notwithstanding
that each L/C issued pursuant to the Guarantee Facility may be issued following
an Issue Request made by the AMPSA Borrower alone, the Guarantee Facility shall
be considered as made available to both Borrowers jointly and severally and
such Issue Request shall be binding on both Borrowers in this respect. Accordingly,
the Borrowers shall be jointly and severally liable for the payment and
discharge of any obligations and liabilities arising in respect of the
Guarantee Facility under the terms of this Agreement.


 


2.17         Issuance
of L/C


 


Subject to the provisions of this Agreement,
the Bank shall on the Issue Date for an L/C, issue the relevant L/C to the
relevant Beneficiary.


 


2.18         Weighting
of Optional Currency L/Cs


 


For the purposes of (a) the definition of
“Actual Exposure” in clause 1.2 and (b) clauses 2.15.4, 8.2.1 and 8.2.7, the
Outstanding Amount of each Optional Currency L/C and the Original Dollar Amount
of any Optional Currency L/C shall be multiplied by 110%.


 


2.19         Extension
of Expiry Date


 


The Borrowers may, by notice in writing to the
Bank signed by a duly authorised signatory of the Borrowers not later than
11.00 a.m. (Piraeus time) five (5) Banking Days prior to the Expiry Date of an
L/C, request that such Expiry Date be extended. Subject to compliance with the
following conditions:


 


2.19.1      the extended
Expiry Date shall be a date falling not later than the Final Maturity Date;


 


2.19.2      no Default
has occurred and is continuing as at the date on which such extension is
implemented;


 


2.19.3      the
representations and warranties in clause 7 and those (if any) in the Security
Documents would be true and not misleading if repeated on the date of the
request for extension; and


 


2.19.4      the Bank
is satisfied that the test contained in clause 8.2.7 would not then or in the
future be breached by reason of the requested extension,


 


the Bank shall agree to and implement such
request by amending and re-issuing the relevant L/C.


 


2.20         Selection
of Optional Currencies for L/Cs


 


2.20.1      If an L/C
is to be issued in an Optional Currency, the AMPSA Borrower shall specify such
Optional Currency in the relevant Issue Request submitted in accordance with
clause 2.14.


 


2.20.2      If the
AMPSA Borrower fails to specify an Optional Currency, it shall be deemed to
have specified Dollars for the L/C concerned.


 


2.21         Amount of
Optional Currencies


 


2.21.1      In this
clause 2.21, the “Bank’s spot rate of
exchange” means the Bank’s rate of exchange for the purchase in the
London Foreign Exchange Market of the appropriate amount of the relevant
Optional Currency with Dollars at or about 11.00 a.m. on, as the case may be,
each Issue Date on which an Optional Currency L/C is to be issued or on which a
previously issued Optional Currency L/C remains outstanding, the Settlement
Date of an Optional Currency L/C and each Reset Date or on any other date when
compliance with clause 8.2.1 or clause 8.2.7 is tested by the Bank, as relevant
(each an “L/C Valuation Date”).


 


2.21.2      On each
L/C Valuation Date the Bank shall determine:


 


31

















 


(a)   in the
case of an Issue Date, the Outstanding Amount of each Optional Currency L/C
then outstanding or to be issued on that L/C Valuation Date;


 


(b)   in the
case of a Settlement Date, the Outstanding Amount of each relevant Optional
Currency L/C; and


 


(c)   in the
case of a Reset Date or any other date when compliance with clause 8.2.1 or
clause 8.2.7 is tested by the Bank, the Outstanding Amount of each Optional
Currency L/C then outstanding,


 


by converting the amount of such L/C in the
Optional Currency into Dollars on the basis of the Bank’s spot rate of
exchange.


 


2.21.3      The Bank
shall promptly notify the Borrowers of the Bank’s spot rate of exchange (as to
which the Bank’s determination shall, in the absence of manifest error, be
conclusive) and of the Outstanding Amounts hereunder as soon as they are
ascertained.


 


2.22         Reduction
of L/Cs


 


The Outstanding Amount of an L/C shall not be
treated as reduced for the purposes of this Agreement unless and until:


 


2.22.1      the Bank
has received a written confirmation from the Beneficiary of such L/C of the
amount of such reduction; or


 


2.22.2      the Bank
has notified the Borrowers in writing that (notwithstanding the absence of a
written confirmation from the Beneficiary of such L/C) it is satisfied that its
liability under the L/C has been irrevocably reduced or discharged; or


 


2.22.3      the amount
of the L/C irrevocably and unconditionally reduces in accordance with its
terms; or


 


2.22.4      the expiry
date of the L/C elapses and the Bank has notified the Borrowers in writing that
it is satisfied that no claim or demand has been made, or may thereafter be
made, under the L/C.


 


If the Outstanding Amount of an L/C has been
reduced pursuant to this clause 2.22, the Outstandings shall be reduced by an
equal amount.


 


2.23         Settlement
of L/Cs - non-settlement to constitute loan


 


2.23.1      The Bank
shall, immediately after receiving a demand from, or after being notified by, a
Beneficiary that it is required to make payment under an L/C, notify the
Borrowers that such payment is due and of the Settlement Amount and the
Settlement Date.


 


2.23.2      The
Borrowers shall immediately after notification from the Bank under clause
2.23.1 reimburse the Settlement Amount to the Bank by payment forthwith to the
Bank on the Settlement Date the Settlement Amount in Dollars or, if the
relevant L/C was issued in an Optional Currency, in such Optional Currency.


 


2.23.3      Each
payment of a Settlement Amount made by the Bank to a Beneficiary under an L/C
and not reimbursed by the Borrowers on the relevant Settlement Date in
accordance with clause 2.23.2, shall constitute a loan advanced by the Bank to
the Borrowers jointly and severally on the Settlement Date. Each such loan
shall be (a) of a principal amount equal to the Settlement Amount paid by the
Bank to the relevant Beneficiary under such L/C, (b) treated as advanced to the
Borrowers on the relevant Settlement Date and (c) due and repayable by the
Borrowers to the Bank on the relevant Settlement Date. The Borrowers, jointly
and severally, hereby undertake with the Bank to repay to the Bank each such
loan on the date so advanced (or deemed advanced) to them pursuant to this
clause 2.23.3 (i.e. on the relevant Settlement Date).


 


32

















 


2.24         Borrowers’
undertaking to indemnify


 


The Borrowers jointly and severally undertake
with the Bank that they shall indemnify, each as a principal and independent
debtor, the Bank on demand against all actions, claims, demands, liabilities,
costs, losses, damages and expenses incurred, suffered or sustained or any
penalty or other expenditure which may result or which the Bank may incur,
suffer or sustain in connection with or arising out of or in relation to any
L/C and/or the payment under or other performance of an L/C.


 


2.25         L/C
payments


 


The Borrowers:


 


2.25.1      irrevocably
authorise the Bank to make any payment demanded from it pursuant to an L/C if
that demand is made in accordance with its terms;


 


2.25.2      accept
that any demand for payment made by the Beneficiary pursuant to an L/C and
which is made in accordance with its terms shall be conclusive evidence that
the Bank was liable to make payment under that L/C and any payment which the
Bank makes pursuant to any such demand shall be accepted by the Borrowers as
binding upon the Borrowers; and


 


2.25.3      acknowledge
and agree that the Bank shall not in any circumstances whatsoever be liable to
the Borrowers or either of them in respect of any loss or damage suffered by
the Borrowers or either of them by reason of the Bank making a payment to the
Beneficiary in connection with any payment demanded under an L/C.


 


2.26         Continuing
liabilities


 


The liabilities and obligations of the
Borrowers under clauses 2.23.2 and 2.24 shall remain in force as a continuing
security until:


 


2.26.1      the full,
prompt and complete performance of all the terms of such liabilities and
obligations including the proper and valid payment of all amounts that may
become due to the Bank under clauses 2.22 and 2.24; and


 


2.26.2      subject to
clause 2.27, an absolute discharge or release of the Borrowers signed by the
Bank,


 


and accordingly the Borrowers shall not have,
as regards those liabilities and obligations, any of the rights or defences of
a surety.


 


2.27         Discharges


 


Any such discharge or release referred to in
clause 2.26, and any composition or arrangement which the Borrowers may effect
with the Bank, shall be deemed to be made subject to the condition that it will
be void if any payment or security which the Bank may previously have received
or may thereafter receive is set aside under any applicable law or proves to
have been for any reason invalid.


 


2.28         No
impairment


 


Without limiting the generality of clauses 2.26
and 2.27, the Borrowers shall neither be discharged from any of their
liabilities or obligations under clauses 2.23.3 and 2.24 by, nor have any claim
against the Bank in respect of:


 


2.28.1      any
misrepresentation or non-disclosure respecting the affairs or condition of the
Bank made to the Borrowers or either of them by any person; or


 


2.28.2      a
Beneficiary and/or the Bank releasing or granting any time or any indulgence
whatsoever or making any settlement, composition or arrangement with the
Borrowers or either of them, a Beneficiary, any other Security Party or any
other person; or


 


33

















 


2.28.3      a
Beneficiary and/or the Bank asserting or pursuing, failing or neglecting to
assert or pursue, or delaying in asserting or pursuing, or waiving, any of
their rights or remedies against the Borrowers or either of them, a
Beneficiary, any other Security Party or any other person; or


 


2.28.4      a
Beneficiary and/or the Bank and/or the Borrowers or either of them, with the
consent of the Borrowers (or with or without the consent of the Borrowers in
the case of any variation agreed between a Beneficiary and the Borrowers or
either of them or the person whose obligations are guaranteed thereby), making,
whether expressly or by conduct, any variation to any L/C; or


 


2.28.5      a
Beneficiary and/or the Bank and/or the Borrowers or either of them:


 


(a)   taking, accepting,
varying, dealing with, enforcing, abstaining from enforcing, surrendering or
releasing any security in relation to a Beneficiary or the Bank or the
Borrowers or either of them or any other person in such manner as it or they
think fit; or


 


(b)   claiming,
proving for, accepting or transferring any payment in respect of the
obligations and liabilities of the Borrowers or either of them and/or a
Beneficiary relative to any L/C or under this Agreement in any composition by,
or winding up of, the Borrowers or either of them and/or any third party or
abstaining from so claiming, proving, accepting or transferring; or


 


2.28.6      any
assignment or transfer by a Beneficiary of, or any succession to, any of its
rights relative to any L/C.


 


2.29         Expiry
Date after the Final Maturity Date


 


Without prejudice to the rights of the Bank
under clauses 2.15 and 2.19, if the Bank in its absolute and unfettered
discretion, and following a relevant request by the Borrowers, agrees to issue
an L/C with an Expiry Date falling later than the Final Maturity Date, or
agrees to extend the Expiry Date of an existing L/C beyond the Final Maturity
Date, the Borrowers hereby jointly and severally undertake with the Bank to
place funds to the credit of the Cash Collateral Account in the currency in
which the relevant L/C is denominated and in such amount as determined by the
Bank in its absolute discretion (which, in any event, shall be no less than the
Outstanding Amount of the relevant L/C).


 


3              Interest and Interest Periods


 


3.1           Normal interest rate


 


3.1.1        Term Loan


 


The Borrowers shall pay interest on each
Tranche in respect of each Interest Period relating thereto on each Interest
Payment Date for such Tranche (or, in the case of Interest Periods of more than
three (3) months, by instalments, the first three (3) months from the
commencement of the Interest Period and the subsequent instalments at intervals
of three (3) months or, if shorter, the period from the date of the preceding
instalment until the Interest Payment Date relative to such Interest Period) at
the rate per annum determined by the Bank to be the aggregate of (a) the
relevant Margin, (b) the Additional Cost and (c) LIBOR for such Interest
Period.


 


3.1.2        Overdraft


 


(a)   The
Overdraft shall bear interest calculated on a daily basis at the annual rate of
interest which is conclusively certified by the Bank to the Borrowers to be the
aggregate of (a) the relevant Margin, (b) the Additional Cost and (c) LIBOR
applicable to each of the relevant days, and such interest shall be payable
quarterly on the twentieth (20th) day of March, June, September and December of
each calendar year (or on such other date or dates as the Bank may notify to
the Borrowers from time to time) up to the Final Maturity Date and on the Final
Maturity Date.


 


34

















 


(b)   Interest
payments due on the Overdraft shall be made by way of debit to the Overdraft
Account (at the Bank’s discretion) provided that such debit shall not cause the
Overdraft (which for these purposes shall include any amount in respect of
which the AMPSA Borrower has made a drawing request pursuant to clause 2.8) to
exceed the applicable Overdraft Facility Limit. If interest payments due
hereunder are not debited to the Overdraft Account as permitted by the
preceding sentence, the Borrowers shall pay the amount thereof to the Bank in
cash on the due date.


 


(c)   The Bank
shall advise the AMPSA Borrower of the interest rates applied to the Overdraft
by bank account statements in respect of the Overdraft Account, which the Bank
shall send to the AMPSA Borrower at the times and in the manner specified in
the terms and conditions applicable to the Overdraft Account as agreed between
the Bank and the AMPSA Borrower from time to time.


 


3.2           Selection of Interest
Periods; Term Loan


 


The Borrowers may by notice received by the
Bank not later than 10:00 a.m. on the second Banking Day before the beginning
of each Interest Period for a Tranche, specify whether such Interest Period
shall have a duration of one (1) month, two (2) months, (3) months, six (6)
months or (subject to availability to be determined by the Bank in its sole
discretion) twelve (12) months or such other period as the Borrowers may select
and the Bank may, in its absolute discretion, agree Provided always that if, on any date upon which an Interest
Period for a Tranche falls to be selected by the Borrowers pursuant to this
clause 3.2, a Transaction or Transactions (which is/are effective or which
shall become effective during the relevant Interest Period) shall have been
entered into between the Bank and the Borrowers pursuant to the Master Swap
Agreement, LIBOR for the Term Loan shall, during the period of any such
Transaction(s) and for an amount of the Term Loan equal to the notional amount
of such Transaction(s), be determined by reference to the rate for deposits in
Dollars displayed on Reuters page LIBOR01 (British Bankers’ Association
Settlement Rates) in accordance with the proviso to paragraph (a) of the
definition of LIBOR in clause 1.2 and, for the avoidance of doubt, LIBOR for
that part of the Term Loan which exceeds the notional amount of the
Transaction(s) shall be determined by reference to the rate for deposits in
Dollars referred to in the definition of LIBOR in clause 1.2 but excluding the
proviso to paragraph (a) of such definition.


 


3.3           Determination of
Interest Periods; Term Loan


 


Every Interest Period in respect of the Term
Loan shall be of the duration required by, or specified by the Borrowers
pursuant to, clause 3.2 but so that:


 


3.3.1        the
initial Interest Period in respect of each Advance shall commence on the
Drawdown Date of such Advance and each subsequent Interest Period in respect
thereof shall commence on the last day of the previous Interest Period for such
Advance;


 


3.3.2        the
initial Interest Period in respect of each Advance in respect of a Newbuilding
(after the first Advance to be drawn down in respect of such Newbuilding) shall
end on the same day as the then current Interest Period for the Tranche for
such Newbuilding and, on the last day of such Interest Period, such Advances
shall be consolidated into, and shall thereafter constitute, the Tranche in
respect of such Newbuilding;


 


3.3.3        if any
Interest Period in respect of a Tranche would otherwise overrun a Repayment
Date for such Tranche, then, in the case of the last Repayment Date for such
Tranche, such Interest Period shall end on such Repayment Date, and in the case
of any other Repayment Date or Repayment Dates for such Tranche, the relevant
Tranche shall be divided into parts so that there is one part in the amount of
the repayment instalment or instalments due on each Repayment Date for such
Tranche falling during that Interest Period and having an Interest Period
ending on the relevant Repayment Date and another part in the amount of the
balance of the relevant Tranche having an Interest Period ascertained in
accordance with clause 3.2 and the other provisions of this
clause 3.3; and


 


35

















 


3.3.4        if the
Borrowers fail to specify the duration of an Interest Period in respect of the
Term Loan in accordance with the provisions of clause 3.2 and this
clause 3.3, such Interest Period shall have a duration of three (3) months
or such other period as shall comply with this clause 3.3.


 


3.4           Default interest


 


If the Borrowers fail to pay any sum
(including, without limitation, any sum payable pursuant to this
clause 3.4 and any amounts payable by the Borrowers under clause 2.23.3)
on its due date for payment under any of the Security Documents (other than the
Master Swap Agreement), the Borrowers shall pay interest on such sum on demand
from the due date up to the date of actual payment (as well after as before
judgment) at a rate determined by the Bank pursuant to this clause 3.4.
The period beginning on such due date and ending on such date of payment shall
be divided into successive periods of not more than six (6) months as selected
by the Bank each of which (other than the first, which shall commence on such
due date) shall commence on the last day of the preceding such period. The rate
of interest applicable to each such period shall be the aggregate (as
determined by the Bank) of (a) one per cent (1%) per annum, (b) the
relevant Margin, (c) the Additional Cost and (d) LIBOR for such period or, for
any such amounts denominated in euros, EURIBOR for such period. Such interest
shall be due and payable on the last day of each such period as determined by
the Bank and each such day shall, for the purposes of this Agreement, be
treated as an Interest Payment Date, provided that, if such unpaid sum is an
amount of principal which became due and payable by reason of a declaration by
the Bank under clause 10.2.2 or a prepayment pursuant to clauses 4.3,
8.2 or 12.1, on a date other than an Interest Payment Date relating thereto,
the first such period selected by the Bank shall be of a duration equal to the
period between the due date of such principal sum and such Interest Payment
Date and interest shall be payable on such principal sum during such period at
a rate one per cent (1%) above the rate applicable thereto immediately before
it shall have become so due and payable. If, for the reasons specified in
clause 3.6.1, the Bank is unable to determine a rate in accordance with
the foregoing provisions of this clause 3.4, interest on any sum not paid
on its due date for payment shall be calculated at a rate determined by the
Bank to be one per cent (1%) per annum above the aggregate of the relevant
Margin and the cost of funds (including Additional Cost) to the Bank.


 


3.5           Notification of
Interest Periods and interest rate


 


The Bank shall notify the Borrowers promptly of
the duration of each Interest Period in respect of the Term Loan and of each
rate of interest determined by it under this clause 3 in respect of the Term
Loan.


 


3.6           Market disruption;
non-availability


 


3.6.1        If and
whenever, at any time prior to the commencement of any Interest Period, the
Bank shall have determined (which determination shall, in the absence of
manifest error, be conclusive):


 


(a)   that
adequate and fair means do not exist for ascertaining LIBOR or (as the case may
be) EURIBOR during such Interest Period; or


 


(b)   that
deposits in Dollars or any Optional Currency are not available to the Bank in
the London Interbank Market or (as the case may be) the European Interbank
Market in the ordinary course of business in sufficient amounts to fund the
Loan or (as the case may be) the Aggregate Liabilities (or a part thereof) for
such Interest Period,


 


the Bank shall forthwith give notice (a “Determination Notice”) thereof to the
Borrowers. A Determination Notice shall contain particulars of the relevant
circumstances giving rise to its issue. After the giving of any Determination
Notice the undrawn amount of the Commitment and the Overdraft Facility shall
not be borrowed and no further L/Cs may be issued until notice to the contrary
is given to the Borrowers by the Bank.


 


3.6.2        During the
period of ten (10) days after any Determination Notice has been given by the Bank
under clause 3.6.1, the Bank shall certify an alternative basis (the “Substitute Basis”) for maintaining the Loan
or (as the case may be) the Aggregate Liabilities. The Substitute Basis


 


36

















 


may (without limitation) include alternative interest periods,
alternative currencies or alternative rates of interest but shall include a
margin above the cost of funds, including Additional Cost, if any, to the Bank
equivalent to the Margin. Each Substitute Basis so certified shall be binding
upon the Borrowers and shall take effect in accordance with its terms from the
date specified in the Determination Notice until such time as the Bank notifies
the Borrowers that none of the circumstances specified in clause 3.6.1
continues to exist whereupon the normal interest rate fixing provisions of this
Agreement shall apply.


 


4              Repayment and prepayment


 


4.1           Repayment of Term
Loan


 


The Borrowers shall repay each Tranche by forty eight (48) instalments,
one such instalment to be repaid on each of the Repayment Dates for such
Tranche. Subject to the provisions of this Agreement, the amount of each of the
repayment instalments (other than the last repayment instalment) for each
Tranche shall be One hundred and forty thousand Dollars ($140,000) and the
amount of the last repayment instalment for each Tranche shall be One hundred
thousand Dollars ($100,000). If the Commitment in respect of any Tranche or
part thereof is not drawn in full, the amount of the repayment instalments in respect
of the relevant Tranche shall be reduced proportionately.


 


4.2           Voluntary prepayment
of Term Loan


 


The Borrowers may prepay any Tranche in whole or part (being Two hundred
thousand Dollars ($200,000) or any larger sum which is an integral multiple of
Two hundred thousand Dollars ($200,000)) on any Interest Payment Date relating
to the part of the Tranche to be prepaid, without premium or penalty.


 


4.3           Prepayments,
reductions and cash-collateralisations on Total Loss or demand under Refund
Guarantees


 


4.3.1        Before
first drawdown - Newbuildings


 


On a Newbuilding becoming a Total Loss or suffering damage or being
involved in an incident which, in the opinion of the Bank, may result in such
Newbuilding being subsequently determined to be a Total Loss, before any
Advance for such Newbuilding is drawn down, the obligation of the Bank to
advance the Tranche (or part thereof) for such Newbuilding shall immediately
cease and the Commitment shall be reduced accordingly.


 


4.3.2        Before
first drawdown - Other Ships


 


On a Mortgaged Ship (other than a Newbuilding) becoming a Total Loss or
suffering damage or being involved in an incident which, in the opinion of the
Bank, may result in that Mortgaged Ship being subsequently determined to be a
Total Loss, before any Advance is drawn down, the Commitment, the Overdraft
Facility Limit and the Guarantee Facility Commitment will be reduced by such
amount (and, in the case of the Commitment, in respect of such Advances) as the
Bank may in its absolute discretion require, and the Bank’s obligation to make
available any Advances (or any part thereof) which comprise the part of the
Commitment that was so cancelled shall immediately cease.


 


4.3.3        After
first drawdown but prior to Delivery - Newbuildings


 


(a)   On a
Newbuilding becoming a Total Loss or suffering damage or being involved in an
incident which, in the opinion of the Bank, may result in such Newbuilding
being subsequently determined to be a Total Loss, after any Advance for such
Newbuilding has been drawn down but prior to the drawing of the Delivery
Advance for such Newbuilding, then:


 


37

















 


(i)    the obligation of the Bank to
advance any other Advance (or part thereof) for such Newbuilding shall
immediately cease and the Commitment shall be reduced accordingly; and


 


(ii)   the Borrowers shall prepay the
Pre-delivery Advances for such Newbuilding in full; and


 


(iii)  the Overdraft Facility Limit
and the Guarantee Facility Commitment shall be reduced by such amounts as the
Bank may in its absolute discretion require; and


 


(iv)  the Borrowers shall repay such
part of the Overdraft and shall place funds to the credit of the Cash
Collateral Account in such amount and in such currency, as the Bank may in its
absolute discretion require.


 


(b)   If a claim
is made under any Refund Guarantee and such claim is not paid within twenty
(20) Banking Days of it being made (whether or not such claim has been referred
to the appropriate courts pursuant to the relevant Refund Guarantee), then:


 


(i)    the obligation of the Bank to
advance any other Advance (or any part thereof) for the Newbuilding relevant to
such Refund Guarantee shall immediately cease; and


 


(ii)   forthwith on the expiry of
such twenty (20) day period, the Borrowers shall:


 


(A)  prepay in full the then
outstanding Advances in respect of that Newbuilding; and


 


(B)   the Overdraft Facility Limit
and the Guarantee Facility Commitment shall be reduced by such amounts as the
Bank may in its absolute discretion require; and


 


(C)   the Borrower shall repay such
part of the Overdraft and shall place funds to the credit of the Cash
Collateral Account in such amount and in such currency, as the Bank may in its
absolute discretion require,


 


Provided however that if
the relevant claim made under the Contract to which such Refund Guarantee
relates has been referred to arbitration under the terms of such Contract, the
time-limit (and the corresponding prepayment obligation of the Borrowers)
referred to in paragraph (ii) of this clause 4.3.3(b) shall be extended to
ninety (90) days of the claim under the relevant Refund Guarantee being made.


 


4.3.4        After
first drawdown - all Mortgaged Ships


 


If a Mortgaged Ship becomes a Total Loss after
the first Drawdown Date under this Agreement, then:


 


(a)   in the
event that such Mortgaged Ship is a Newbuilding, the Borrowers shall prepay the
Tranche for such Newbuilding in full on the Reduction Date for such
Newbuilding; and


 


(b)   forthwith
after the occurrence of such Total Loss, the Overdraft Facility Limit and the
Guarantee Facility Commitment shall be reduced by such amounts as the Bank may
in its absolute discretion require; and


 


(c)   forthwith
following the Bank’s request, the Borrowers shall repay such part of the
Overdraft and the Tranches (and in such manner as between them), and shall
place funds to the credit of the Cash Collateral Account in such amount and in
such currency, as the Bank may in its absolute discretion require.


 


For the purposes of this clause 4.3.4, “Reduction Date” means, in relation to a
Mortgaged Ship which has become a Total Loss, the date falling one hundred and
twenty (120) days after the date when such Ship became a Total Loss or, if
earlier, the date when insurance proceeds in


 


38

















 


respect of such Total Loss are, or Requisition
Compensation for such Ship is, received by the relevant Owner (or the Bank
pursuant to the Ship Security Documents).


 


4.3.5        Interpretation


 


For the purpose of this Agreement, a Total Loss
in respect of a Ship shall be deemed to have occurred:


 


(a)   in the
case of an actual total loss of a Ship, on the actual date and at the time such
Ship was lost or, if such date is not known, on the date on which such Ship was
last reported;


 


(b)   in the
case of a constructive total loss of a Ship, upon the date and at the time
notice of abandonment of such Ship is given to the insurers of such Ship for
the time being;


 


(c)   in the
case of a compromised or arranged total loss of a Ship, on the date upon which
a binding agreement as to such compromised or arranged total loss has been
entered into by the insurers of such Ship;


 


(d)   in the
case of Compulsory Acquisition of such Ship, on the date upon which the
relevant requisition of title or other compulsory acquisition occurs; and


 


(e)   in the
case of hijacking, theft, condemnation, capture, seizure, arrest, detention or
confiscation of a Ship (other than where the same amounts to Compulsory
Acquisition of such Ship) by any Government Entity, or by persons purporting to
act on behalf of any Government Entity, which deprives the relevant Owner (or,
in the case of a Newbuilding prior to its Delivery, the Builders) of the use of
such Ship for more than thirty (30) days, upon the expiry of the period of
thirty (30) days after the date upon which the relevant hijacking, theft,
condemnation, capture, seizure, arrest, detention or confiscation occurred.


 


4.4           Amounts payable on
prepayment - Term Loan


 


Any prepayment of all or part of the Term Loan
under this Agreement shall be made together with (a) accrued interest on the
amount to be prepaid to the date of such prepayment, (b) any additional
amount payable under clauses 6.6 or 12.2 and (c) all other sums
payable by the Borrowers to the Bank under this Agreement or any of the other
Security Documents including, without limitation, any accrued commitment
commission or guarantee commission payable under clause 5.1 and any
amounts payable under clause 11.


 


4.5           Notice of prepayment;
reduction of repayment instalments - Term Loan


 


4.5.1        No
prepayment of the Term Loan may be effected under clause 4.2 unless the
Borrowers shall have given the Bank at least fourteen (14) days’ notice of
their intention to make such prepayment. Every notice of prepayment shall be
effective only on actual receipt by the Bank, shall be irrevocable, shall
specify the Tranche and the amount thereof to be prepaid and shall oblige the
Borrowers to make such prepayment on the date specified.


 


4.5.2        Any amount
of the Term Loan prepaid pursuant to clause 4.2 in respect of a Tranche
shall be applied in reducing the repayment instalments of the relevant Tranche
under clause 4.1 in inverse order of their due dates for payment.


 


4.5.3        Any amount
of the Term Loan prepaid pursuant to clause 8.2.1(a) shall be applied in
prepayment of all Tranches proportionately as between them and in reduction of
the repayment instalments of each Tranche in inverse order of their due dates
for payment.


 


4.5.4        The
Borrowers may not prepay the Term Loan or any part thereof save as expressly
provided in this Agreement. No amount prepaid under this Agreement may be
re-borrowed.


 


39

















 


4.6           Master Swap
Agreement, repayments and prepayments of Term Loan


 


4.6.1        Notwithstanding
any provision of the Master Swap Agreement to the contrary, in the case of a
prepayment of all or part of the Term Loan (including, without limitation,
following the occurrence of a Total Loss in accordance with clause 4.3 or
under clauses 8.2.1(a) or 12.1) then, subject to clause 4.6.2, the Bank shall
be entitled but not obliged (and, where relevant, may do so without the consent
of the Borrowers, where it would otherwise be required whether under the Master
Swap Agreement or otherwise) to amend, supplement, cancel, net out, terminate,
liquidate, transfer or assign all or any part of the rights, benefits and
obligations created by any Transaction and/or the Master Swap Agreement and/or
to obtain or re-establish any hedge or related trading position in any manner
and with any person the Bank in its absolute discretion may determine and both
the Bank’s and the Borrowers’ continuing obligations under any Transaction
and/or the Master Swap Agreement shall, unless agreed otherwise by the Bank, be
calculated so far as the Bank considers it practicable by reference to the amended
repayment schedule for the Term Loan taking into account the fact that
less than the full amount of the Term Loan remains outstanding.


 


4.6.2        If less
than the full amount of the Term Loan remains outstanding following a
prepayment under this Agreement and the Bank in its absolute discretion agrees,
following a written request of the Borrowers, that the Borrowers may be
permitted to maintain all or part of a Transaction in an amount not wholly
matched with or linked to all or part of the Term Loan, the Borrowers shall,
within ten (10) days of being notified by the Bank of such requirement, provide
the Bank with, or procure the provision to the Bank of, such additional
security as shall in the opinion of the Bank be adequate to secure the
performance of such Transaction, which additional security shall take such
form, be constituted by such documentation and be entered into between such
parties, as the Bank in its absolute discretion may approve or require, and
each document comprising such additional security shall constitute a Credit
Support Document.


 


4.6.3        The
Borrowers shall on the first written demand of the Bank indemnify the Bank in
respect of all losses, costs and expenses (including, but not limited to, legal
costs and expenses) incurred or sustained by the Bank as a consequence of or in
relation to the effecting of any matter or transactions referred to in this
clause 4.6.


 


4.6.4        Notwithstanding
any provision of the Master Swap Agreement to the contrary, if for any reason a
Transaction has been entered into but no Advance is drawn down under this
Agreement then, subject to clause 4.6.5, the Bank shall be entitled but
not obliged (and, where relevant, may do so without the consent of the
Borrowers where it would otherwise be required whether under the Master Swap
Agreement or otherwise) to amend, supplement, cancel, net out, terminate,
liquidate, transfer or assign all or any part of the rights, benefits and
obligations created by such Transaction and/or the Master Swap Agreement and/or
to obtain or re-establish any hedge or related trading position in any manner
and with any person the Bank in its absolute discretion may determine.


 


4.6.5        If a
Transaction has been entered into but no Advance is drawn down under this
Agreement and the Bank in its absolute discretion agrees, following a written
request of the Borrowers, that the Borrowers may be permitted to maintain all
or part of a Transaction, the Borrowers shall, within ten (10) days of being
notified by the Bank of such requirement, provide the Bank with, or procure the
provision to the Bank of, such additional security as shall in the opinion of
the Bank be adequate to secure the performance of such Transaction, which
additional security shall take such form, be constituted by such documentation and
be entered into between such parties, as the Bank in its absolute discretion
may approve or require, and each document comprising such additional security
shall constitute a Credit Support Document for the purposes of the Master Swap
Agreement and/or otherwise.


 


4.6.6        Without
prejudice to or limitation of the obligations of the Borrowers under
clause 4.6.3, in the event that the Bank exercises any of its rights under
clauses 4.6.1, 4.6.2, 4.6.4 or 4.6.5 and such exercise results in all or
part of a Transaction being terminated, such termination shall be treated under
the Master Swap Agreement in the same manner as if it were a Terminated
Transaction (as defined in section 14 of the Master Swap Agreement)
effected by the Bank after an Event of Default (as so defined in that
section 14) by the Borrowers and, accordingly, the Bank shall be


 


40

















 


permitted to recover from the Borrowers a payment for early termination
calculated in accordance with the provisions of section 6(e)(i) of the
Master Swap Agreement.


 


5              Fees, commitment commission and expenses


 


5.1           Fees


 


The Borrowers shall pay to the Bank:


 


5.1.1        an
arrangement fee of Three hundred and seventy five thousand Dollars ($375,000)
on the date of this Agreement;


 


5.1.2        (a)           on each of
the dates falling at three (3) monthly intervals after the date of this
Agreement until the earlier of (i) the last day of the last Drawdown Period to
elapse and (ii) the Drawdown Date of the last Delivery Advance to be drawn
down, and on the earlier of such two dates, commitment commission computed from
the date of this Agreement (in the case of the first payment of commission) and
from the due date of the preceding payment of commission (in the case of each
subsequent payment) at the rate of zero point two five per cent (0.25%) per
annum on the daily undrawn amount of the Commitment; and


 


(b)           on each of the dates
falling at three (3) monthly intervals after the date of this Agreement until
the last day of the Availability Period, and on such day, commitment commission
computed from the date of this Agreement (in the case of the first payment of
commission) and from the due date of the preceding payment of commission (in
the case of each subsequent payment) at the rate of zero point two five per
cent (0.25%) per annum on (i) the daily undrawn amount of the Overdraft
Facility Limit and (ii) the daily balance of the unutilised Guarantee Facility
Commitment;


 


5.1.3        on each of
the dates falling at monthly intervals after the date of this Agreement, letter
of credit commission on the Outstanding Amount of each L/C outstanding during
any part of the relevant monthly period, computed in respect of each L/C from
its Issue Date until its Expiry Date at the following respective rates in
respect of each type of L/C:


 


(a)   in respect
of Documentary L/Cs, zero point two five per cent (0.25%) per annum;


 


(b)   in respect
of Transaction Related Standby L/Cs, zero point six two five per cent (0.625%)
per annum; and


 


(c)   in respect
of Direct Credit Substitutes, one point one two five per cent (1.125%) per
annum; and


 


5.1.4        on the
Issue Date for an L/C, a processing fee of $500 in respect of each L/C so
issued on such date.


 


The fee referred to in clause 5.1.1 and
the commissions referred to in clauses 5.1.2 and 5.1.3 shall be
non-refundable and shall be payable by the Borrowers to the Bank whether or not
any part of the Commitment is ever advanced, any drawing is made under the
Overdraft Facility or (except in the case of the commission under clause 5.1.3)
any L/C is ever issued.


 


5.2           Expenses


 


The Borrowers shall pay to the Bank on a full
indemnity basis on demand all expenses (including legal, printing and
out-of-pocket expenses) incurred by the Bank:


 


5.2.1        in
connection with the negotiation, preparation, execution and, where relevant,
registration of the Security Documents and of any amendment or extension of or
the granting of any waiver or consent under, any of the Security Documents; and


 


41

















 


5.2.2        in contemplation
of, or otherwise in connection with, the enforcement of, or preservation of any
rights under, any of the Security Documents, or otherwise in respect of the
moneys owing under any of the Security Documents,


 


together with interest at the rate referred to
in clause 3.4 from the date on which such expenses were incurred to the
date of payment (as well after as before judgment).


 


5.3           Value Added Tax


 


All fees, commissions and expenses payable
pursuant to this clause 5 shall be paid together with value added tax or
any similar tax (if any) properly chargeable thereon. Any value added tax
chargeable in respect of any services supplied by the Bank under this Agreement
shall, on delivery of the value added tax invoice, be paid in addition to any
sum agreed to be paid hereunder.


 


5.4           Stamp and other
duties


 


The Borrowers shall pay all stamp, documentary,
registration or other like duties or taxes imposed on or in connection with any
of the Underlying Documents, the Security Documents, the Overdraft Facility,
the Guarantee Facility, the Loan, the Outstandings or the L/Cs and shall
indemnify the Bank against any liability arising by reason of any delay or
omission by the Borrowers to pay such duties or taxes.


 


6              Payments and taxes; accounts and calculations


 


6.1           No set-off
or counterclaim


 


The Borrowers acknowledge that in performing
its obligations under this Agreement, the Bank will be incurring liabilities to
third parties in relation to the funding of amounts to the Borrowers, such
liabilities matching the liabilities of the Borrowers to the Bank and that it
is reasonable for the Bank to be entitled to receive payments from the
Borrowers gross on the due date in order that the Bank is put in a position to
perform its matching obligations to the relevant third parties. Accordingly,
all payments to be made by the Borrowers under any of the Security Documents
shall be made in full, without any set-off or counterclaim whatsoever and,
subject as provided in clause 6.6, free and clear of any deductions or withholdings,
in Dollars or the relevant Optional Currency in which they are denominated
(except for charges or expenses which shall be paid in the currency in which
they are incurred) on the due date (for value on the day on which payment is
due) to the account of the Bank as follows:


 


6.1.1        if in
Dollars:


 


(a)   by not
later than 11.00 a.m. (New York time) on the due date;


 


(b)   in same
day Dollar funds settled through the New York Clearing House Interbank Payments
System (or in such other Dollar funds and/or settled in such other manner as
the Bank shall specify as being customary at the time for the settlement of
international transactions of the type contemplated by this Agreement); and


 


(c)   to the
account of the Bank at American Express Bank Limited, 23rd Floor, American
Express Tower, 200 Vesey Street, New York, NY 10285-2300, U.S.A. (Account No
000261123), or to such other account with such other bank as the Bank may from
time to time notify to the Borrowers;


 


6.1.2        if in an
Optional Currency (other than euros and Sterling):


 


(a)   by not
later than 11.00 a.m. local time in the place for payment (or such other time
as may be required law or practice for the settlement of foreign exchange
transactions in the place of payment) on the due date; and


 


42














 


(b)         in lawful money of
the country of that currency which is freely transferable and convertible into
Dollars and in immediately available funds to the account of such bank in such
place in the country of that currency as the Bank shall from time to time notify
to the Borrowers;


 


6.1.3        if in
Sterling:


 


(a)          by not later than
11.00 a.m. (London time) on the due date;


 


(b)         in immediately
available funds; and


 


(c)          to such account of
the Bank with such bank as the Bank shall from time to time notify to the Borrowers;
and


 


6.1.4        if in
euros:


 


(a)          by not later than
11.00 a.m. (Greek time) on the due date;


 


(b)         in immediately
available funds; and


 


(c)          to such account of
the Bank with such bank as the Bank shall from time to time notify to the
Borrowers.


 


6.2           Payment by the Bank


 


All sums to be advanced by the Bank to the
Borrowers under this Agreement:


 


6.2.1                        if in
respect of the Term Loan shall be remitted in Dollars on the Drawdown Date for
the relevant Advance to the account specified in the Drawdown Notice for such
Advance; or


 


6.2.2                        if in
respect of the Overdraft shall be paid in Dollars in accordance with the AMPSA
Borrower’s instructions and pursuant to clauses 2.8 and 2.9.1.


 


6.3           Non-Banking Days


 


When any payment under any of the Security
Documents would otherwise be due on a day which is not a Banking Day, the due
date for payment shall be extended to the next following Banking Day unless
such Banking Day falls in the next calendar month in which case payment shall
be made on the immediately preceding Banking Day.


 


6.4        Calculations


 


All interest and other payments of an annual
nature under any of the Security Documents shall accrue from day to day and be
calculated on the basis of actual days elapsed and:


 


(a)          in the case of
payments denominated in Dollars or an Optional Currency other than Sterling or
Hong Kong Dollars, on the basis of a three hundred and sixty (360) day year; or


 


(b)         in the case of
payments denominated in Sterling or Hong Kong Dollars, on the basis of a three
hundred and sixty five (365) day year.


 


6.5        Certificates
conclusive


 


Any certificate or determination of the Bank as
to any rate of interest, rate of exchange or any other amount pursuant to and
for the purposes of any of the Security Documents shall, in the absence of
manifest error, be conclusive and binding on the Borrowers.


 


43

















 


6.6           Grossing-up for Taxes


 


If at any time the Borrowers are required to
make any deduction or withholding in respect of Taxes from any payment due
under any of the Security Documents, the sum due from the Borrowers in respect
of such payment shall be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, the Bank receives on the due
date for such payment (and retains, free from any liability in respect of such
deduction or withholding), a net sum equal to the sum which it would have
received had no such deduction or withholding been required to be made and the
Borrowers shall indemnify the Bank against any losses or costs incurred by it
by reason of any failure of the Borrowers to make any such deduction or
withholding or by reason of any increased payment not being made on the due
date for such payment. The Borrowers shall promptly deliver to the Bank any
receipts, certificates or other proof evidencing the amounts (if any) paid or
payable in respect of any deduction or withholding as aforesaid.


 


6.7           Loan account


 


The Bank shall maintain, in accordance with its
usual practice, an account or accounts (whether in the name of both Borrowers
or in the name of either Borrower) evidencing the amounts from time to time
lent by, owing and paid to, it under the Security Documents. Such account shall
be the “account current” referred to in any Mortgage which shall be in a statutory
form. Such account shall, in the absence of manifest error, be conclusive as to
the amount from time to time owing by the Borrowers under the Security
Documents.


 


6.8           Types of L/C


 


For all purposes of this Agreement the Bank
shall determine, which determination shall be conclusive and binding on the
Borrowers, whether an L/C is to be classified as a Documentary L/C, a
Transaction Related Standby L/C or a Direct Credit Substitute.


 


7              Representations and warranties


 


7.1           Continuing representations and warranties


 


The Borrowers jointly and severally represent
and warrant to the Bank that:


 


7.1.1                        Due
incorporation


 


each of the Borrowers and each of the other
Security Parties are duly incorporated and validly existing in good standing
under the laws of their respective countries of incorporation as corporations
or (as the case may be) as companies with limited liability and have power to
carry on their respective businesses as they are now being conducted and to own
their respective property and other assets;


 


7.1.2                        Corporate
power


 


each of the Borrowers has power to execute,
deliver and perform its obligations under the Borrowers’ Security Documents and
the Underlying Documents to which it is or is to be a party and to borrow the
Commitment, the Overdraft and any loans made by the Bank under clause 2.23.3,
and each of the other Security Parties has power to execute and deliver and
perform its obligations under the Security Documents and the Underlying
Documents to which it is or is to be a party; all necessary corporate,
shareholder and other action has been taken to authorise the execution,
delivery and performance of the same and no limitation on the powers of either
Borrower to borrow will be exceeded as a result of borrowing the Loan or any
other loans made by the Bank under clause 2.23.3 or any other transaction
contemplated by this Agreement or the other Security Documents;


 


44

















 


7.1.3                        Binding
obligations


 


the Underlying Documents and the Security
Documents constitute or will, when executed, constitute valid and legally
binding obligations of the relevant Security Parties enforceable in accordance
with their respective terms;


 


7.1.4                        No
conflict with other obligations


 


the execution and delivery of, the performance
of their obligations under, and compliance with the provisions of, the
Underlying Documents and the Security Documents by the relevant Security
Parties, will not (a) contravene any existing applicable law, statute, rule or
regulation or any judgment, decree or permit to which either of the Borrowers
or any other Security Party is subject, (b) conflict with, or result in
any breach of any of the terms of, or constitute a default under, any agreement
or other instrument to which either of the Borrowers or any other Security
Party is a party or is subject or by which it or any of its property is bound,
(c) contravene or conflict with any provision of the constitutional
documents of either of the Borrowers or any other Security Party or
(d) result in the creation or imposition of or oblige either of the
Borrowers or any other Security Party to create any Encumbrance (other than a
Permitted Encumbrance) on any of the undertakings, assets, rights or revenues
of the Borrowers or any other Security Party;


 


7.1.5                        No
litigation


 


no litigation, arbitration or administrative
proceeding is taking place, pending or, to the knowledge of any of the officers
of the Borrowers, threatened against either of the Borrowers or any other
Security Party which could have a material adverse effect on the business,
assets or financial condition of either of the Borrowers or any of their
Related Companies or any other Security Party;


 


7.1.6                        No filings
required


 


save for the registration of each Mortgage
through the relevant Registry, it is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of any of the Security
Documents or any of the Underlying Documents that they or any other instrument
be notarised, filed, recorded, registered or enrolled in any court, public
office or elsewhere in any Relevant Jurisdiction or that any stamp,
registration or similar tax or charge be paid in any Relevant Jurisdiction on
or in relation to the Security Documents and the Underlying Documents and each
of the Security Documents and the Underlying Documents is in proper form for
its enforcement in the courts of each Relevant Jurisdiction;


 


7.1.7                        Choice of
law


 


the choice of English law to govern the
Underlying Documents and the Security Documents (other than the Mortgages), the
choice of the law of the relevant Flag State to govern each Mortgage, and the
submissions by the Security Parties to the non-exclusive jurisdiction of the
English courts, are valid and binding;


 


7.1.8                        No
immunity


 


neither of the Borrowers nor any other Security
Party nor any of their respective assets is entitled to immunity on the grounds
of sovereignty or otherwise from any legal action or proceeding (which shall
include, without limitation, suit, attachment prior to judgement, execution or
other enforcement);


 


7.1.9                        Consents
obtained


 


every consent, authorisation, licence or
approval of, or registration with or declaration to, governmental or public
bodies or authorities or courts required by any Security Party to authorise, or
required by any Security Party in connection with, the execution, delivery,
validity, enforceability or admissibility in evidence of each of the Underlying
Documents and the Security Documents or the performance by each Security Party
of its obligations under the Underlying Documents and the Security Documents
has been obtained or made and is in full force and


 


45

















 


effect and there has been no default in the
observance of any of the conditions or restrictions (if any) imposed in, or in
connection with, any of the same; and


 


7.1.10                  Shareholdings


 


each of the AMPSA Borrower, each Owner and the
Corporate Guarantor are wholly-owned direct or indirect Subsidiaries of the
AMPNI Borrower and:


 


(a)          on the date of this
Agreement and at all times thereafter until the Listing, all of the issued
shares of the AMPNI Borrower are ultimately beneficially owned by such person
or persons as disclosed by or on behalf of the Borrowers to the Bank in the
negotiation of this Agreement; and


 


(b)         from the Listing
Date and at all times thereafter, no less than 35% of the total issued and
voting share capital of the AMPNI Borrower shall be ultimately beneficially
owned by Mr Dimitrios Melissanidis.


 


7.2                                 Initial
representations and warranties


 


The Borrowers jointly and severally further
represent and warrant to the Bank that:


 


7.2.1                        Pari passu


 


the obligations of each Borrower under this
Agreement and the Master Swap Agreement are direct, general and unconditional
obligations of such Borrower and rank at least pari passu with all other
present and future unsecured and unsubordinated Indebtedness of such Borrower
(with the exception of any obligations which are mandatorily preferred by law
and not by contract);


 


7.2.2                        No default
under other Indebtedness


 


neither of the Borrowers nor any of their
respective Related Companies nor any other Security Party is (nor would with
the giving of notice or lapse of time or the satisfaction of any other
condition or combination thereof be) in breach of or in default under the
Master Swap Agreement or any other agreement relating to Indebtedness to which
it is a party or by which it may be bound;


 


7.2.3                        Information


 


the information, exhibits and reports furnished
by any Security Party to the Bank in connection with the negotiation and
preparation of the Security Documents are true and accurate in all material
respects and not misleading, do not omit material facts and all reasonable
enquiries have been made to verify the facts and statements contained therein;
there are no other facts the omission of which would make any fact or statement
therein misleading;


 


7.2.4                        No
withholding Taxes


 


no Taxes are imposed by withholding or
otherwise on any payment to be made by any Security Party under the Underlying
Documents or the Security Documents or are imposed on or by virtue of the
execution or delivery by the Security Parties of the Underlying Documents or
the Security Documents or any other document or instrument to be executed or
delivered under any of the Security Documents;


 


7.2.5                        No Default


 


no Default has occurred and is continuing;


 


46

















 


7.2.6                        No Default
under Contracts, Supervision Contracts or Refund Guarantees


 


no Newbuilding Owner is in default of any of
its obligations under the relevant Contract or the relevant Supervision
Contract or any of its obligations upon the performance or observance of which
depend the continued liability of any Refund Guarantor in accordance with the
terms of any Refund Guarantee relating to such Newbuilding Owner’s Newbuilding;


 


7.2.7                        No
Encumbrance in respect of pre-delivery security


 


no Newbuilding Owner has previously charged,
encumbered or assigned the benefit of any of its rights, title and interest in
or to the Contract or the Supervision Contract or any Refund Guarantee relating
to such Newbuilding Owner’s Newbuilding and such benefit and all such rights,
title and interest are freely assignable and chargeable in the manner
contemplated by the Security Documents;


 


7.2.8                        The Ships


 


(a)          each Newbuilding
will be on the Drawdown Date of the Delivery Advance relevant to such
Newbuilding; and


 


(b)         each Additional
Ship will be on the Additional Mortgage Date for that Ship; and


 


(c)          each Ship (other
than the Newbuildings and the Additional Ships) will be on the first Drawdown
Date under this Agreement:


 


(i)                       in the
absolute ownership of the relevant Owner who will, on and after such date, be
the sole, legal and beneficial owner of such Ship;


 


(ii)                    registered in the
name of the relevant Owner through the relevant Registry as a ship under the
laws and flag of the relevant Flag State;


 


(iii)                 operationally
seaworthy and in every way fit for service; and


 


(iv)                classed with the
relevant Classification free of all requirements and recommendations of the
relevant Classification Society;


 


7.2.9                        Ships’
employment


 


none of the Ships will be:


 


(a)          in the case of each
Newbuilding, on the Drawdown Date of the relevant Delivery Advance; or


 


(b)         in the case of an
Additional Ship, on the Additional Mortgage Date for that Ship; or


 


(c)          in the case of each
Ship (other than a Newbuilding or an Additional Ship), on the first Drawdown
Date under this Agreement,


 


subject to any charter or contract or to any
agreement to enter into any charter or contract which, if entered into after
the date of the relevant Ship Security Documents would have required the
consent of the Bank and:


 


(i)                       on or
before the Drawdown Date of the Delivery Advance relevant to a Newbuilding,
there will not be any agreement or arrangement whereby the Earnings of that
Newbuilding may be shared with any other person; and


 


(ii)                    on or before the
Additional Mortgage Date in respect of an Additional Ship, there will not be
any agreement or arrangement whereby the Earnings of that Ship may be shared
with any other person; and


 


47

















 


(iii)                 on the first
Drawdown Date, there will not be any agreement or arrangement whereby the
Earnings of any Ship (other than the Newbuildings and the Additional Ships) may
be shared with any other person;


 


7.2.10                  Freedom
from Encumbrances


 


(a)          no Newbuilding, nor
its Earnings, Insurances or Requisition Compensation nor any other properties
or rights which are, or are to be, the subject of any of the Ship Security
Documents relating to that Newbuilding nor any part thereof will be, on the
Drawdown Date of the Delivery Advance relevant to such Newbuilding, subject to
any Encumbrance (other than Permitted Encumbrances);


 


(b)         no Additional Ship
nor its Earnings, Insurances or Requisition Compensation nor any other
properties or rights which are, or are to be, the subject of any of the Ship
Security Documents relating to that Additional Ship nor any part thereof will
be, on the Additional Mortgage Date for that Ship, subject to any Encumbrance
(other than Permitted Encumbrances); and


 


(c)          no Ship (other than
a Newbuilding or an Additional Ship) nor its Earnings, Insurances or
Requisition Compensation nor any other properties or rights which are or are to
be the subject of any of the Ship Security Documents relating to that Ship, nor
any of the Accounts nor the Receivables nor any part thereof will be, on the
first Drawdown Date under this Agreement, subject to any Encumbrances (other
than Permitted Encumbrances);


 


7.2.11                  Compliance
with Environmental Laws and Approvals


 


except as may already have been disclosed by
the Borrowers in writing to, and acknowledged in writing by, the Bank:


 


(a)          the Borrowers and
the other Relevant Parties and, to the best of the Borrowers’ knowledge and
belief (having made due enquiry), their respective Environmental Affiliates
have complied with the provisions of all Environmental Laws;


 


(b)         the Borrowers and
the other Relevant Parties and, to the best of the Borrowers’ knowledge and
belief (having made due enquiry), their respective Environmental Affiliates
have obtained all Environmental Approvals and are in compliance with all such
Environmental Approvals; and


 


(c)          neither the
Borrowers nor any other Relevant Party nor, to the best of the Borrowers’
knowledge and belief (having made due enquiry), any of their respective
Environmental Affiliates has received notice of any Environmental Claim that
the Borrowers or either of them or any other Relevant Party or any such
Environmental Affiliate is not in compliance with any Environmental Law or any
Environmental Approval;


 


7.2.12                  No
Environmental Claims


 


except as may already have been disclosed by
the Borrowers in writing to, and acknowledged in writing by, the Bank, there is
no Environmental Claim pending or, to the best of the Borrowers’ knowledge and
belief, threatened against any of the Owners or any of the Ships or any other
Relevant Party or any other Relevant Ship or, to the best of the Borrowers’
knowledge and belief (having made due enquiry), any of their respective Environmental
Affiliates;


 


7.2.13                  No
potential Environmental Claims


 


except as may already have been disclosed by
the Borrowers in writing to, and acknowledged in writing by, the Bank, there
has been no emission, spill, release or discharge of a Pollutant from any of
the Ships or any other Relevant Ship owned by, managed or crewed by or
chartered to any of the Owners nor, to the best of the Borrowers’ knowledge and
belief (having


 


48

















 


made due enquiry), from any Relevant Ship owned
by, managed or crewed by or chartered to any other Relevant Party which could
give rise to an Environmental Claim;


 


7.2.14                  No
material adverse change


 


there has been no material adverse change in
the financial position of the Borrowers or the Owners or the Corporate
Guarantor or any other Relevant Party or the consolidated financial position of
the Group, from that described by the Borrowers to the Bank in the negotiation
of this Agreement;


 


7.2.15                  ISPS Code


 


(a)          on the Drawdown
Date of the Delivery Advance for a Newbuilding, the relevant Newbuilding Owner
shall have a valid and current ISSC in respect of that Newbuilding and such
Newbuilding shall be in compliance with the ISPS Code;


 


(b)         on the Additional
Mortgage Date for an Additional Ship, the relevant Additional Owner shall have
a valid and current ISSC in respect of that Ship and such Ship shall be in
compliance with the ISPS Code; and


 


(c)          on the first
Drawdown Date under this Agreement, the Owner of each Ship (other than the
Newbuildings and the Additional Ships), shall have a valid and current ISSC in
respect of its Ship and each such Ship shall be in compliance with the ISPS
Code;


 


7.2.16                  Copies
true and complete - commissions


 


(a)          the copies of each
of the Underlying Documents (other than the Refund Guarantees) delivered or to
be delivered to the Bank pursuant to clause 9.1 are, or will when
delivered be, true and complete copies of such documents; each of such document
constitutes valid and binding obligations of the parties thereto enforceable in
accordance with its terms and there will have been no amendments or variations
thereof or defaults thereunder; and


 


(b)         there are no
address or other commissions payable to any of the Newbuilding Owners or any
other Relevant Party or other person on account of any of the Contracts and the
Supervision Contracts, except as disclosed in writing by or on behalf of the
Borrowers or any other Security Party to the Bank prior to the date of this
Agreement;


 


7.2.17                  Refund
Guarantees


 


the original executed copy of each Refund
Guarantee delivered or to be delivered to the Bank pursuant to clause 9 is, or
will when delivered be, a true and complete original of such document; each
such document will, when delivered, constitute valid and binding obligations of
the relevant Refund Guarantor enforceable in accordance with its terms and
there will have been no amendments or variations thereof or defaults
thereunder; and


 


7.2.18                  Application
for DOC and SMC


 


the Operator of each Ship has applied for a DOC
for itself and an SMC in respect of each Ship (other than the Newbuildings and
each Additional Ship) and:


 


(a)          on the Drawdown
Date of the Delivery Advance for a Newbuilding, it will have applied, for an
SMC in respect of such Newbuilding; and


 


(b)         on the Additional
Mortgage Date for an Additional Ship, it will have applied for an SMC in
respect of such Ship,


 


and neither of the Borrowers nor the Operator of any Ship is aware of
any reason why any such application may be refused.


 


49

















 


7.3                                 Repetition
of representations and warranties


 


On and as of each Drawdown Date and each Issue
Date of an L/C and (except in relation to the representations and warranties in
clause 7.2) on each Interest Payment Date, the Borrowers shall (a) be
deemed to repeat the representations and warranties in clauses 7.1 and 7.2
as if made with reference to the facts and circumstances existing on such day
and (b) be deemed to further represent and warrant to the Bank that the
then latest audited consolidated financial statements of the Group delivered to
the Bank (if any) have been prepared in accordance with the Applicable
Accounting Principles which have been consistently applied and present fairly
and accurately the consolidated financial position of the Group as at the end
of the financial period to which the same relate and the consolidated results
of the operations of the Group for the financial period to which the same
relate, respectively, and, as at the end of such financial period, neither the
AMPNI Borrower nor any other member of the Group had any significant
liabilities (contingent or otherwise) or any unrealised or anticipated losses
which are not disclosed by, or reserved against or provided for in, such
financial statements.


 


8                                         Undertakings


 


8.1                                 General


 


The Borrowers jointly and severally undertake
with the Bank that, from the date of this Agreement and so long as any moneys
are owing under any of the Security Documents, whether actually or
contingently, and while all or any part of the Commitment remains outstanding
or the Overdraft Facility or the Guarantee Facility Commitment remains
available, each Borrower will:


 


8.1.1                        Notice of
Default


 


(a)          promptly inform the
Bank of any occurrence of which it becomes aware which might adversely affect
the ability of any Security Party to perform its obligations under any of the
Security Documents or the Underlying Documents and, without limiting the
generality of the foregoing, will inform the Bank of any Default forthwith upon
becoming aware thereof and will from time to time, if so requested by the Bank,
confirm to the Bank in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is continuing; and


 


(b)         promptly inform the
Bank of any occurrence of which it becomes aware which might adversely affect
the ability or rights of any Newbuilding Owner to make any claims under the
Contract or the Supervision Contract or any Refund Guarantee relating to such
Newbuilding Owner’s Newbuilding, which might reduce or release any of the
obligations of the Builders or either of them under such Contract or lota under
such Supervision Contract or of the relevant Refund Guarantor under such Refund
Guarantee (as the case may be);


 


8.1.2                        Consents
and licences


 


without prejudice to clauses 7.1 and 9,
obtain or cause to be obtained, maintain in full force and effect and comply in
all material respects with the conditions and restrictions (if any) imposed in,
or in connection with, every consent, authorisation, licence or approval of
governmental or public bodies or authorities or courts and do, or cause to be
done, all other acts and things which may from time to time be necessary or
desirable under applicable law for the continued due performance of all the
obligations of the Security Parties under each of the Security Documents and
the Underlying Documents;


 


8.1.3                        Use of
proceeds


 


(a)          without prejudice
to paragraph (b) below, use the Term Loan or, as the case may be, the Advances,
the Overdraft and the L/Cs exclusively for the relevant purposes specified in
clauses 1.1, 2.3 and 2.7; and


 


50

















 


(b)         (in view of the
fact that the Overdraft Facility is to be used for working capital purposes),
ensure that there are fluctuating debit balances in the Overdraft Account at
all times;


 


8.1.4                        Pari passu
and subordination of intra-Group loans


 


(a)          ensure that the
obligations of the Borrowers, each Owner and the Corporate Guarantor under this
Agreement, the Master Swap Agreement, each Owner’s Guarantee and the Corporate
Guarantee, respectively, shall, without prejudice to the provisions of
clause 8.3 and the security intended to be created by the Security
Documents, at all times rank at least pari passu with all their other
respective present and future unsecured and unsubordinated Indebtedness with
the exception of any obligations which are mandatorily preferred by law and not
by contract; and


 


(b)         ensure that, to the
extent that the proceeds of any Advance (or part thereof) or the Overdraft
Facility are on-lent by the Borrowers to the Newbuilding Owners or any other
Owner or any other member of the Group in accordance with the specified purpose
of any such Advance or the Overdraft Facility pursuant to clauses 1.1, 2.3 and
2.7:


 


(i)                       the
relevant loan or loans shall be made on an unsecured basis and shall be fully
subordinated towards any moneys owing to the Bank, whether actually or
contingently, under this Agreement and the other Security Documents; and


 


(ii)                    neither the
relevant loan or loans nor any part thereof nor any interest accrued or
accruing thereon shall be repaid or paid to the Borrowers unless any and all
moneys owing to the Bank, whether actually or contingently, under this
Agreement and the other Security Documents (including the Aggregate
Liabilities) have been repaid in full;


 


8.1.5                        Financial
statements


 


prepare or cause to be prepared consolidated
financial statements of the Group in accordance with the Applicable Accounting
Principles consistently applied in respect of each financial year and cause the
same to be reported on by the Group’s auditors and prepare or cause to be
prepared consolidated financial statements of the Group in respect of each
financial half-year on the same basis as the annual financial statements, and
deliver to the Bank as many copies of the same as the Bank may reasonably
require as soon as practicable but not later than ninety (90) days (in the case
of annual financial statements) and thirty (30) days (in the case of
semi-annual financial statements) after the end of the financial period to
which they relate;


 


8.1.6                        Delivery
of reports


 


deliver to the Bank as many copies as the Bank
may reasonably require of every report, circular, notice or like document
issued by the Borrowers, the Corporate Guarantor, each Owner, any other member
of the Group or any of their respective Related Companies to their shareholders
or creditors generally, in each case at the time of issue thereof;


 


8.1.7                        Provision
of further information


 


provide the Bank with such financial and other information
concerning the Group, the Borrowers, the other Security Parties, the other
Relevant Parties and their respective affairs, at the earliest possible
opportunity and in any event at regular intervals of not more than three (3)
months and at all other times as the Bank may from time to time require,
including, without limitation, any management information, information relating
to the Builders and the construction of the Newbuildings, information relating
to the position, trading and/or employment of the Ships and any actual or
proposed purchase of vessels by any member of the Group, copies of all
documents required of the AMPNI Borrower to file with the Securities and
Exchange Commission of the U.S.A. or pursuant to the Sarbanes-Oxley Act of the
U.S.A. and any other documents or information as may be reasonably required by
the Bank;


 


51

















 


8.1.8                        Obligations
under Security Documents


 


and will procure that each of the other
Security Parties will, duly and punctually perform each of the obligations
expressed to be assumed by it under the Security Documents and the Underlying
Documents;


 


8.1.9                        Compliance
with Code


 


and will procure that any Operator will, comply
with, and ensure that each Ship and any Operator at all times complies with,
the requirements of the Code, including (but not limited to) the maintenance
and renewal of valid certificates pursuant thereto throughout the Security
Period;


 


8.1.10                  Withdrawal
of DOC and SMC


 


and will procure that any Operator will,
immediately inform the Bank if there is any threatened or actual withdrawal of
such Operator’s DOC or the SMC in respect of any Ship;


 


8.1.11                  Issuance
of DOC and SMC


 


and will procure that any Operator will,
promptly inform the Bank upon the issuance to any Operator of a DOC and to each
Ship of an SMC or the receipt by any of the Owners or any Operator of
notification that its application for the same has been refused;


 


8.1.12                  ISPS Code
compliance


 


and will procure that the Manager or any
Operator will:


 


(a)          from the Drawdown
Date of the Delivery Advance for a Newbuilding and at all times thereafter,
maintain a valid and current ISSC in respect of that Newbuilding;


 


(b)         from the Additional
Mortgage Date for an Additional Ship and at all times thereafter, maintain at
all times a valid and current ISSC respect of that Additional Ship;


 


(c)          from the first
Drawdown Date under this Agreement and at all times thereafter, maintain a
valid and current ISSC in respect of each Ship (other than the Newbuildings and
the Additional Ships);


 


(d)         immediately notify
the Bank in writing of any actual or threatened withdrawal, suspension,
cancellation or modification of the ISSC in respect of any Ship;


 


(e)          procure that, from
the Drawdown Date of the Delivery Advance for a Newbuilding and at all times
thereafter, that Newbuilding will comply at all times with the ISPS Code;


 


(f)            procure that, from
the Additional Mortgage Date for an Additional Ship, that Additional Ship will
comply at all times with the ISPS Code; and


 


(g)         procure that each
Ship (other than the Newbuildings and the Additional Ships) will comply at all
times with the ISPS Code;


 


8.1.13                  “KYC”
requirements


 


deliver to the Bank such documents and evidence
as the Bank shall from time to time require, based on applicable law and
regulations and the Bank’s own internal guidelines from time to time, in each
case, relating to the verification of identity and knowledge of the Bank’s
customers and to the opening of bank accounts by any Security Party (including
the Accounts);


 


8.1.14                  Minimum
liquidity


 


(a)          maintain at all
times in the AMPNI Operating Account cash balances of no less than the Required
Amount (excluding any amounts then standing to the credit of the AMPNI


 


52

















 


Operating Account and which are taken into account for the purposes of
testing the Borrowers’ compliance with clause 8.6.1(c); and


 


(b)         for the purposes of
this clause 8.1.14, “Required Amount”
means $22,000,000 or such other lower amount as the Bank may from time to time
notify the Borrowers in writing in its sole discretion (it being agreed that
the Bank may give multiple such notices to the Borrowers from time to time
increasing or reducing the minimum amount required under this clause 8.1.14, subject
always to a maximum amount of $22,000,000), as any such amount may be reduced
from time to time pursuant to clause 14.2.1(c); and


 


8.1.15                  Conditions
subsequent - additional security


 


(a)          within seven (7)
days following a relevant request by the Bank to the Borrowers and the relevant
Collateral Owner(s) in writing in respect of one or more Collateral Ships,
deliver to the Bank, and/or procure that the relevant Collateral Owner(s) (as
the case may be) execute(s) and deliver(s) to the Bank, the documents and
evidence set out in schedule 10, Part 1 in respect of such Collateral Ship(s),
in form and substance satisfactory to the Bank and at the cost and expense of
the Borrowers; and


 


(b)         on or prior to the
time of a withdrawal of funds from the AMPNI Operating Account in accordance
with clause 14.2.1(b) in connection with the acquisition of an Additional Ship
by the relevant Additional Owner, deliver to the Bank, and/or procure that the
relevant Additional Owner executes and delivers to the Bank, the documents and
evidence set out in schedule 10, Part 2 in respect of that Additional Ship, in
form and substance satisfactory to the Bank and at the cost and expense of the
Borrowers.


 


8.2                                 Security
value maintenance


 


8.2.1                        Security
shortfall


 


If at any time the Security Value shall be less
than the Security Requirement, the Bank may give notice to the Borrowers
requiring that such deficiency be remedied and then the Borrowers shall at
their discretion either:


 


(a)          prepay within a
period of fourteen (14) days of the date of receipt by the Borrowers of the
Bank’s said notice such sum of the Term Loan or the Overdraft in Dollars as
will result in the Security Requirement after such prepayment (taking into
account any other repayment made in accordance with clause 4.1 between the date
of the notice and the date of such prepayment) being at least equal to the
Security Value; or


 


(b)         within fourteen
(14) days of the date of receipt by the Borrowers of the Bank’s said notice
constitute to the satisfaction of the Bank such further security for the
Aggregate Liabilities as shall be acceptable to the Bank having a value for
security purposes (as determined by the Bank in its discretion) at the date
upon which such further security shall be constituted which, when added to the
Security Value, shall not be less than the Security Requirement as at such
date.


 


The provisions of clauses 4.4 and 4.5
shall apply to prepayments made under clause 8.2.1(a).


 


8.2.2                        Valuation
of Mortgaged Ships


 


(a)          Each Mortgaged Ship
shall, for the purposes of this clause 8.2, be valued in Dollars at the
end of every financial quarter and at any other times as and when the Bank
shall require. Subject to paragraph (b) below, each such valuation shall be
made by an independent firm of shipbrokers nominated by the Borrowers and
approved by the Bank in its sole discretion or, failing such nomination or
approval, appointed by the Bank in its sole discretion. Each such valuation of
a Mortgaged Ship shall be addressed to the Bank and made without, unless
required by the Bank, physical inspection and on the basis of a sale for prompt
delivery for cash at arm’s length on normal commercial terms, as between a
willing buyer and a willing seller and without taking into account the


 


53

















 


benefit of any charterparty or other engagement concerning the relevant
Mortgaged Ship. Such valuation shall constitute the value of such Mortgaged
Ship for the purposes of this clause 8.2 unless the Bank objects to the
valuation of the relevant Mortgaged Ship provided by the shipbroker nominated
by the Borrowers within seven (7) days of receipt of such valuation, in which
event the value of such Mortgaged Ship shall be the arithmetic mean of the
value specified in such valuation and the value specified in a further
valuation issued by an independent firm of shipbrokers appointed by the Bank
and made on the same basis as specified above.


 


(b)         In the case of a
Ship which is a single hull vessel, its market value for the purposes of this
clause 8.2 shall be the then prevailing scrap value of such Ship as determined
by the Bank in its sole discretion.


 


(c)          The value of each
Mortgaged Ship determined in accordance with the provisions of this
clause 8.2.2 shall be binding upon the parties hereto until such further
date when the market value of such Mortgaged Ship is determined by the Bank
pursuant to this clause 8.2.2.


 


8.2.3                        Information


 


The Borrowers jointly and severally undertake
to the Bank to supply to the Bank and to any such shipbrokers such information
concerning each Mortgaged Ship and its condition as such shipbrokers may
reasonably require for the purpose of making any such valuation.


 


8.2.4                        Costs


 


All costs in connection with the Bank obtaining
any valuation of each of the Mortgaged Ships referred to in clause 8.2.2
and in schedule 2, Part 5, paragraph 19, and any valuation either of any
additional security for the purposes of ascertaining the Security Value at any
time or necessitated by the Borrowers electing to constitute additional security
pursuant to clause 8.2.1(b), shall be borne by the Borrowers.


 


8.2.5                        Valuation
of additional security


 


For the purposes of this clause 8.2, the
market value of any additional security provided or to be provided to the Bank
shall be determined by the Bank in its absolute discretion without any
necessity for the Bank assigning any reason thereto.


 


8.2.6                        Documents
and evidence


 


In connection with any additional security
provided in accordance with this clause 8.2, the Bank shall be entitled to
receive such evidence and documents of the kind referred to in Error! Reference source not
found. as may in the Bank’s opinion be appropriate and such favourable legal
opinions as the Bank shall in its absolute discretion require.


 


8.2.7                        Excess
Actual Exposure - security value maintenance


 


(a)          Without prejudice
to clause 8.2.1 and the test contained therein, if at any time (1) the Actual
Exposure (but excluding any part thereof falling under paragraph (a) of the
definition “Actual Exposure” in clause 1.2 which is not part of the Overdraft)
is in excess of $100,000,000 and (2) the relevant excess is higher than the
aggregate of:


 


(i)                       eighty
per cent (80%) of the face value of the aggregate of all Qualifying
Receivables; and


 


(ii)                    the sum then
standing to the credit of the Cash Collateral Account,


 


then the Bank may give notice to the Borrowers
requiring that such deficiency be remedied and then the Borrowers shall, within
two (2) days of the date of receipt by the Borrowers of the Bank’s said notice,
at their discretion either:


 


54

















 


(A)                      prepay a
part of the Loan; and/or


 


(B)                        provide in
accordance with clause 2.12 Receivables which are Qualifying Receivables by
delivering to the Bank a Schedule of Receivables with such Receivables together
with copies of documents, receipts and invoices of the type specified in clause
2.12 and relating to such Receivables; and/or


 


(C)                        place
further funds to the credit of the Cash Collateral Account.


 


(b)         The Borrowers shall
provide the Bank with such information, including without limitation Schedules
of Receivables, as the Bank shall from time to time require for the purposes of
giving effect to this clause 8.2.7.


 


(c)          The Bank shall test
the Borrowers’ compliance with this clause 8.2.7 at the end of every financial
quarter and at any other times as and when the Bank shall require (but not more
frequently than once per week) and, in any event, on each Reset Date.


 


8.3                                 Negative
undertakings


 


The Borrowers jointly and severally undertake
with the Bank that, from the date of this Agreement and so long as any moneys
are owing under the Security Documents, whether actually or contingently, and
while all or any part of the Commitment remains outstanding or the Overdraft
Facility or the Guarantee Facility Commitment remain available, without the
prior written consent of the Bank:


 


8.3.1                        Negative
pledge


 


the Borrowers will not permit any Encumbrance
(other than a Permitted Encumbrance) to subsist, arise or be created or
extended over all or any part of their respective present or future
undertakings, assets, rights or revenues (including, but not limited to, the
Borrowers’ rights against the Bank under any Transactions and/or the Master
Swap Agreement or all or any part of the Borrowers’ interest in any amount
payable to the Borrowers by the Bank under any Transactions and/or the Master
Swap Agreement)  in order to secure or
prefer any present or future Indebtedness or other liability or obligation of
the Borrowers or either of them or any Security Party or any other person;


 


8.3.2                        No merger


 


the Borrowers will not merge or consolidate
with any other person or enter into any demerger, amalgamation, corporate
reconstruction or redomiciliation of any type;


 


8.3.3                        Disposals


 


the Borrowers will not sell, transfer, abandon,
lend or otherwise dispose of or cease to exercise direct control over any part
(being either alone or when aggregated with all other disposals falling to be
taken into account pursuant to this clause 8.3.3 material in the opinion
of the Bank in relation to the undertaking, assets, rights and revenues of the
relevant Borrower taken as a whole) of their respective present or future
undertaking, assets, rights or revenues (otherwise than by transfers, sales or
disposals for full consideration in the ordinary course of trading) whether by
one or a series of transactions related or not;


 


8.3.4                        Other
business


 


neither the Borrowers nor the Group as a whole
will undertake any business other than the business carried out by them on the
date of this Agreement;


 


8.3.5                        Acquisitions


 


the AMPSA Borrower will not acquire any further
assets other than in the ordinary course of its business or contracts for the
sale of oil bunkers and lubricants;


 


55

















 


8.3.6                        Other obligations


 


the AMPSA Borrower will not incur any
obligations except for obligations arising under the Underlying Documents or
the Security Documents or contracts entered into in the ordinary course of its
business or contracts for the sale of oil bunkers and lubricants;


 


8.3.7                        No
borrowing


 


the AMPSA Borrower will not incur any Borrowed
Money except for Borrowed Money pursuant to the Security Documents;


 


8.3.8                        Repayment
of borrowings


 


the AMPSA Borrower will not repay the principal
of, or pay interest on or any other sum in connection with any of its Borrowed
Money except for Borrowed Money pursuant to the Security Documents;


 


8.3.9                        Loans


 


the AMPSA Borrower will not make any loans or
grant any credit (save for normal trade credit in the ordinary course of business)
to any person or agree to do so;


 


8.3.10                  Sureties


 


the AMPSA Borrower will not permit any of its
Indebtedness to any person (other than the Bank) to be guaranteed by any person
save in the ordinary course of its business or by the Bank by way of L/Cs;


 


8.3.11                  Share
capital and distribution


 


the AMPNI Borrower will not:


 


(a)          purchase or
otherwise acquire for value any shares of its capital or distribute any of its
other present or future assets, undertaking, rights or revenues to any of its
shareholders; or


 


(b)         declare or pay any
dividends to any of its shareholders if an Event of Default has occurred or
will or, in the opinion of the Bank, is likely to occur as a result of, or
following, the declaration or payment of dividends;


 


8.3.12                  Subsidiaries


 


the AMPSA Borrower will not form or acquire any
Subsidiaries save in the ordinary course of its business;


 


8.3.13                  Manager


 


the Borrowers will not permit the appointment
of any manager of any of the Ships other than the Manager or the termination or
amendment of the terms of any of the Management Agreements; or


 


8.3.14                  Shareholdings


 


the Borrowers will not:


 


(a)          prior to the
Listing, change, cause or permit any change in, the legal and/or ultimate
beneficial ownership of any of the shares in either of the Borrowers or the
Corporate Guarantor or any of the Owners from that existing on the date of this
Agreement as specified in clause 7.1.10; or


 


56

















 


(b)         after the Listing,
change, cause or permit any change in, the legal and/or ultimate beneficial
ownership of any of the shares in the AMPNI Borrower which would result in Mr
Dimitrios Melissanidis being the ultimate beneficial owner of less than 35% of
the total issued voting share capital of the AMPNI Borrower; or


 


(c)          after the Listing,
change, cause or permit any change in, the legal and/or beneficial ownership of
any of the shares in the AMPSA Borrower or any Owner or the Corporate Guarantor
which would result in any such Security Party ceasing to be a wholly-owned
direct or indirect Subsidiary of the AMPNI Borrower.


 


8.4                                 Pre-delivery
positive undertakings


 


The Borrowers hereby jointly and severally
undertake and agree with the Bank that they will:


 


8.4.1                        Conveyance
on default


 


procure that, where any Newbuilding is (or is
to be) sold in exercise of any power contained in the relevant Pre-delivery
Security Assignment or otherwise conferred on the Bank, the relevant
Newbuilding Owner will execute, forthwith upon request by the Bank, such form
of conveyance of such Newbuilding as the Bank may require;


 


8.4.2                        Flag State


 


procure that, not later than thirty (30) days
prior to the Delivery Date of each Newbuilding, the Borrowers and the relevant
Newbuilding Owner obtain the Bank’s written approval of the Flag State for such
Newbuilding; and


 


8.4.3                        Mortgage


 


immediately upon Delivery of each Newbuilding
procure that the relevant Newbuilding Owner shall execute, and procure the
registration of, the Mortgage over such Newbuilding under the laws and flag of
the relevant Flag State and execute and provide all other documents and
evidence as specified in Part 5 of schedule 2 in respect of such
Newbuilding.


 


8.5                                 Pre-delivery
negative undertaking


 


The Borrowers hereby jointly and severally
further undertake and agree with the Bank that they will procure that no
Newbuilding Owner will, without the prior written consent of the Bank (and then
only subject to such conditions as the Bank may impose), let or agree to let
its Newbuilding:


 


8.5.1                        on demise
charter for any period; or


 


8.5.2                        by any
time or consecutive voyage charter for a term which exceeds or which by virtue
of any optional extensions therein contained may exceed twelve (12) months’
duration; or


 


8.5.3                        on terms
whereby more than two (2) months’ hire (or the equivalent) is payable in
advance; or


 


8.5.4                        below the
market rate prevailing at the time when the relevant Newbuilding is fixed.


 


8.6                                 Financial
undertakings


 


8.6.1                        The
Borrowers jointly and severally undertake with the Bank that, from the date of
this Agreement and so long as any moneys are owing under the Security Documents
and while all or any part of the Commitment, the Overdraft Facility or the
Guarantee Facility Commitment remains available, they will ensure that:


 


(a)          Consolidated Book
Net Worth


 


the Consolidated Book Net Worth shall not be
less than One hundred and fifty million Dollars ($150,000,000) at the end of
any Accounting Period;


 


57

















 


(b)         Consolidated
Leverage Ratio


 


the Consolidated Leverage Ratio shall not be
higher than 0.65:1.0 at the end of any Accounting Period; and


 


(c)          Liquidity


 


the AMPNI Borrower maintains on a consolidated
basis:


 


(i)                       Consolidated
Liquid Funds of no less than $25,000,000 at the end of each calendar month and
at the end of each Accounting Period; and


 


(ii)                    Consolidated Liquid
Funds of no less than $10,000,000 on an average daily basis.


 


8.6.2                        All the
terms defined in clause 1.2 and used in this clause 8.6, and other
accounting terms used in this clause 8.6, are to be determined by the Bank
on a consolidated basis and (except as items are expressly included or excluded
in the relevant definition or provision) are used and shall be construed in
accordance with the Applicable Accounting Principles consistently applied and
as determined from any relevant Accounting Information and, in the case of the
undertaking set out in clause 8.6.1(c), also by reference to any other
information available to the Bank at any relevant time.


 


8.6.3                        The
compliance of the AMPNI Borrower with the undertakings set out in
clause 8.6.1 shall be determined by the Bank in its sole discretion on the
basis of calculations made by the Bank:


 


(a)          in the case of each
such undertaking (except
that of clause 8.6.1(c)(ii)), at the end of each Accounting Period at the time
when the relevant Accounting Information has been delivered to the Bank
pursuant to clause 8.1.5; and


 


(b)         in the case of the
undertaking of clause 8.6.1(c)(i), also
on the last Banking Day of each calendar month; and


 


(c)          in the case of the
undertaking of clause 8.6.1(c)(ii), on each Friday of each week.


 


8.6.4                        Without
prejudice to the other terms of this clause 8.6 and, in particular, the
time when compliance with the financial undertakings of clause 8.6.1 is to
be measured by the Bank pursuant to clause 8.6.3, the Borrowers hereby
jointly and severally undertake that the financial undertakings of
clause 8.6.1 will be complied with at all times during the whole term of
each Accounting Period.


 


8.6.5                        For the
purposes of this clause 8.6: (i) no item shall be deducted or credited
more than once in any calculation; and (ii) any amount expressed in a currency
other than Dollars shall be converted into Dollars in accordance with the
Applicable Accounting Principles consistently applied.


 


8.7                                 Cash
collateralisation of L/Cs


 


Without prejudice to clauses 2.29 and 9.3,
forthwith upon, or at any time following:


 


8.7.1                        the
occurrence of an Event of Default; or


 


8.7.2                        the
service of a notice under clause 12.1,


 


the Bank shall be entitled (but not obliged) to
demand payment by the Borrowers of, and the Borrowers forthwith upon such
demand shall pay to the Bank for credit to the Cash Collateral Account, such
amount as shall be the aggregate of the said Outstanding Amounts for all L/Cs.
Such payment shall be made in Dollars, except in the case of any part of the
said Outstanding Amounts which is a Settlement Amount outstanding in an
Optional Currency and unpaid, which shall be made in the relevant Optional
Currency.


 


58

















 


8.8                                 Right of
first refusal


 


8.8.1                        If any
member of the Group (excluding the Security Parties) acquires a vessel (other
than the Ships and excluding, for the avoidance of doubt, any Additional
Ships), the AMPNI Borrower and the relevant member of the Group shall be entitled
to arrange for the financing of the acquisition of such vessel by bank debt and
to agree that such vessel shall be mortgaged in favour of the relevant lender
or lenders, subject to no Event of Default having occurred and be continuing at
such time and the Borrowers and the other Security Parties being in compliance
with all of their undertakings and obligations under this Agreement and the
other Security Documents.


 


8.8.2                        In any
such case, the Borrowers hereby grant the Bank a right of first refusal in
connection with the potential financing of each such vessel by way of (inter
alios) (a) increasing the Commitment hereunder and (b) obtaining such security
over each such vessel and its earnings and insurances as the Bank may in its
sole discretion require, and otherwise on such terms and conditions as the Bank
may propose to the Borrowers. In view of the above, the Borrowers hereby
undertake with the Bank to approach the Bank prior to any other potential
lender thereof, with a view to discussing with the Bank any such financing
proposal for any such vessel and to allow the Bank reasonable time to consider
a financing arrangement on the conditions set out above, before reaching an
agreement with any other lender.


 


8.8.3                        No term of
this clause 8.8 is or shall be interpreted as a commitment or agreement on the
part of the Bank to finance any such vessel.


 


9                                         Conditions


 


9.1                                 Documents
and evidence


 


9.1.1                        Commitment,
Overdraft Facility and L/Cs


 


(a)          The obligation of
the Bank to make the Commitment, the Overdraft Facility and the Guarantee
Facility available and to issue any L/C, shall be subject to the condition that
the Bank or its duly authorised representative shall have received, not later
than two (2) Banking Days before the date when the first Drawdown Notice is
sent to the Bank under this Agreement, the documents and evidence specified in
Part 1 of Error! Reference source not found., in
form and substance satisfactory to the Bank.


 


(b)         For the avoidance
of doubt, the Bank shall not make the Overdraft Facility nor the Guarantee
Facility available, unless one or more Advances have been drawn down under this
Agreement.


 


9.1.2                        First
Advances


 


The obligation of the Bank to make available
the First Advance in respect of any Newbuilding shall be subject to the condition
that the Bank or its duly authorised representative shall have received, on or
prior to the drawdown of the relevant First Advance, the documents and evidence
specified in Part 2 of schedule 2 in respect of such Newbuilding, in form
and substance satisfactory to the Bank.


 


9.1.3                        Second
Advances


 


The obligation of the Bank to make available
the Second Advance in respect of any Newbuilding shall be subject to the
condition that the Bank or its duly authorised representative shall have
received, on or prior to the drawdown of the relevant Second Advance, the
relevant documents and evidence specified in Part 3 of schedule 2 in
respect of such Newbuilding, in form and substance satisfactory to the Bank.


 


9.1.4                        Third
Advances


 


The obligation of the Bank to make available
the Third Advance in respect of any Newbuilding shall be subject to the
condition that the Bank or its duly authorised representative shall have
received, on or prior to the drawdown of the relevant Third Advance, the
relevant documents


 


59

















 


and evidence specified in Part 4 of
schedule 2 in respect of such Newbuilding, in form and substance
satisfactory to the Bank.


 


9.1.5                        Delivery
Advances


 


The obligation of the Bank to make available
the Delivery Advance in respect of any Newbuilding shall be subject to the
condition that the Bank or its duly authorised representative shall have
received, on or prior to the drawdown of the relevant Delivery Advance, the
documents and evidence specified in Part 5 of Error! Reference source not
found. in respect of such Newbuilding, in form and substance satisfactory to
the Bank.


 


9.2                                 General
conditions precedent


 


The obligation of the Bank to make any Advance
or the Overdraft available or to issue any L/C (as the case may be) shall be
subject to the further conditions that, at the time of the giving of the
Drawdown Notice in respect of the relevant Advance or the relevant drawing
request under the Overdraft Facility or the relevant Issue Request in respect
of the relevant L/C (as the case may be) and at the time of the making of the
relevant Advance or of the relevant drawing under the Overdraft Facility or on
the Issue Date of the relevant L/C (as the case may be):


 


9.2.1                        the
representations and warranties contained in (i) clauses 7.1, 7.2 and
7.3(b), (ii) clause 4 of the Corporate Guarantee and (iii) clause 4
of each Owner’s Guarantee, are true and correct on and as of each such time as
if each was made with respect to the facts and circumstances existing at such
time; and


 


9.2.2                        no Default
shall have occurred and be continuing or would result from the making of such
Advance or the relevant drawing or the issuing of the relevant L/C (as the case
may be).


 


9.3                                 Waiver of
conditions precedent


 


The conditions specified in this clause 9
are inserted solely for the benefit of the Bank and may be waived by the Bank
in whole or in part and with or without conditions.


 


9.4                                 Further
conditions precedent


 


Not later than five (5) Banking Days prior to
each Drawdown Date or each Issue Date and not later than five (5) Banking Days
prior to each Interest Payment Date in respect of the Term Loan or each Reset
Date, the Bank may request and the Borrowers shall, not later than two (2)
Banking Days prior to such date, deliver to the Bank on such request further
favourable certificates and/or opinions as to any or all of the matters which
are the subject of clauses 7, 8, 9 and 10 of this Agreement.


 


10                                  Events of Default


 


10.1                           Events


 


There shall be an Event of Default if:


 


10.1.1                  Non-payment: any Security Party fails to pay any sum payable by
it under any of the Security Documents or the Underlying Documents at the time,
in the currency and in the manner stipulated in the Security Documents or the
Underlying Documents (and so that, for this purpose, sums payable on demand
shall be treated as having been paid at the stipulated time if paid within
three (3) Banking Days of demand); or


 


10.1.2                  Master Swap Agreement:  (i) an
Event of Default or Potential Event of Default (in each case as defined in the
Master Swap Agreement) has occurred and is continuing under the Master Swap
Agreement or (ii) an Early Termination Date (as defined in the Master Swap
Agreement) has occurred or been effectively designated under the Master Swap
Agreement or (iii) a person entitled to do so gives notice of an Early
Termination Date (as defined in the Master Swap Agreement) under
section 6(b)(iv) of the Master Swap Agreement or (iv) the Master Swap 


 


60

















 


Agreement is terminated, cancelled, suspended,
rescinded or revoked or otherwise ceases to remain in full force and effect for
any reason; or


 


10.1.3                  Breach of Insurances and certain other obligations: any of
the Owners or the Manager fails to obtain and/or maintain the Insurances (in
accordance with the requirements of the Security Documents) for any of the
Mortgaged Ships or if any insurer in respect of such Insurances cancels any of
such Insurances or disclaims liability by reason, in either case, of
mis-statement in any proposal for any of such Insurances or for any other
failure or default on the part of the Owners or any of them or any other person
or the Borrowers or the Corporate Guarantor or any of the Owners commit any
breach of or omit to observe any of the obligations or undertakings expressed
to be assumed by them under clauses 8.1.3, 8.1.14, 8.1.15, 8.2, 8.3, 8.4, 8.5,
8.6, 8.7 or 8.8 of this Agreement or clause 5.2 of the Corporate Guarantee or
clause 5 of any Owner’s Guarantee, respectively; or


 


10.1.4                  Breach of other obligations: any Security Party commits any breach of or
omits to observe any of its obligations or undertakings expressed to be assumed
by it under any of the Security Documents or any of the Underlying Documents
(other than those referred to elsewhere in this clause 10.1) and, in
respect of any such breach or omission which in the opinion of the Bank is
capable of remedy, such action as the Bank may require shall not have been
taken within fourteen (14) days of the Bank notifying the relevant Security
Party of such default and of such required action; or


 


10.1.5                  Misrepresentation: any representation or warranty made or deemed
to be made or repeated by or in respect of any Security Party in or pursuant to
any of the Security Documents or in any notice, certificate or statement
referred to in or delivered under any of the Security Documents or any of the
Underlying Documents is or proves to have been incorrect or misleading in any
material respect; or


 


10.1.6                  Cross-default: any Indebtedness of any Relevant Party is not paid
when due or any Indebtedness of any Relevant Party becomes (whether by
declaration or automatically in accordance with the relevant agreement or
instrument constituting the same) due and payable prior to the date when it
would otherwise have become due (unless as a result of the exercise by the
relevant Relevant Party of a voluntary right of prepayment) or any creditor of
any Relevant Party becomes entitled to declare any such Indebtedness due and
payable or any facility or commitment available to any Relevant Party relating
to Indebtedness is withdrawn, suspended or cancelled by reason of any default
(howsoever described) of the person concerned unless the relevant Relevant
Party shall have satisfied the Bank that such withdrawal, suspension or
cancellation will not affect or prejudice in any way the relevant Relevant
Party’s ability to pay its debts as they fall due and fund its commitments, or
any guarantee given by any Relevant Party in respect of Indebtedness is not
honoured when due and called upon; or


 


10.1.7                  Legal process: any judgment or order made against any Relevant
Party is not stayed or complied with within seven (7) days or a creditor
attaches or takes possession of, or a distress, execution, sequestration or
other process is levied or enforced upon or sued out against, any of the
undertakings, assets, rights or revenues of any Relevant Party and is not
discharged within seven (7) days; or


 


10.1.8                  Insolvency: any Relevant Party is unable or admits inability to
pay its debts as they fall due; suspends making payments on any of its debts or
announces an intention to do so; becomes insolvent; has assets the value of
which is less than the value of its liabilities (taking into account contingent
and prospective liabilities); or suffers the declaration of a moratorium in
respect of any of its Indebtedness; or


 


10.1.9                  Reduction or loss of capital: a meeting is convened by any Relevant Party
for the purpose of passing any resolution to purchase or reduce its share
capital or to redeem any of its shares; or


 


10.1.10            Winding up: any corporate action, legal proceedings or other
procedure or step is taken for the purpose of winding up any Relevant Party or
an order is made or resolution passed for the winding up of any Relevant Party
or a notice is issued convening a meeting for the purpose of passing any such
resolution; or


 


61

















 


10.1.11            Administration: any petition is presented, notice given or step is
taken for the purpose of the appointment of an administrator of any Relevant
Party or the Bank believes that any such petition or other step is imminent or
an administration order is made in relation to any Relevant Party; or


 


10.1.12            Appointment of receivers and managers: any administrative
or other receiver is appointed of any Relevant Party or any part of its assets
and/or undertaking or any other steps are taken to enforce any Encumbrance over
all or any part of the assets of any Relevant Party; or


 


10.1.13            Compositions: any corporate action, legal proceedings or other
procedures or steps are taken, or negotiations commenced, by any Relevant Party
or by any of its creditors with a view to the general readjustment or
rescheduling of all or part of its indebtedness or to proposing any kind of
composition, compromise or arrangement involving such company and any of its
creditors; or


 


10.1.14            Analogous proceedings: there occurs, in relation to any Relevant
Party, in any country or territory in which any of them carries on business or
to the jurisdiction of whose courts any part of their assets is subject, any
event which, in the reasonable opinion of the Bank, appears in that country or
territory to correspond with, or have an effect equivalent or similar to, any
of those mentioned in clauses 10.1.7 to 10.1.13 (inclusive) or any
Relevant Party otherwise becomes subject, in any such country or territory, to
the operation of any law relating to insolvency, bankruptcy or liquidation; or


 


10.1.15            Cessation of business: any Relevant Party suspends or ceases or
threatens to suspend or cease to carry on its business; or


 


10.1.16            Seizure: all or a material part of the undertaking, assets,
rights or revenues of, or shares or other ownership interests in, any Relevant
Party are seized, nationalised, expropriated or compulsorily acquired by or
under the authority of any government; or


 


10.1.17            Invalidity: any of the Security Documents shall at any time and
for any reason become invalid or unenforceable or otherwise cease to remain in
full force and effect, or if the validity or enforceability of any of the
Security Documents shall at any time and for any reason be contested by any
Security Party which is a party thereto, or if any such Security Party shall
deny that it has any, or any further, liability thereunder; or


 


10.1.18            Unlawfulness: it becomes impossible or unlawful at any time for
any Security Party, to fulfil any of the covenants and obligations expressed to
be assumed by it in any of the Security Documents or for the Bank to exercise
the rights or any of them vested in it under any of the Security Documents or
otherwise; or


 


10.1.19            Repudiation: any Security Party repudiates any of the Security
Documents or does or causes or permits to be done any act or thing evidencing
an intention to repudiate any of the Security Documents; or


 


10.1.20            Encumbrances enforceable: any Encumbrance (other than Permitted Liens)
in respect of any of the property (or part thereof) which is the subject of any
of the Security Documents becomes enforceable; or


 


10.1.21            Material adverse change: there occurs, in the reasonable opinion of
the Bank, a material adverse change in the financial condition of any Security
Party by reference to the financial position of that Security Party as
described by or on behalf of the Borrowers or any Security Party to the Bank in
the negotiation of this Agreement; or


 


10.1.22            Arrest: any Mortgaged Ship is arrested, confiscated, seized,
taken in execution, impounded, forfeited, detained in exercise or purported
exercise of any possessory lien or other claim or otherwise taken from the
possession of the relevant Owner and such Owner shall fail to procure the
release of such Mortgaged Ship within a period of two (2) days thereafter; or


 


10.1.23            Registration: the registration of any Mortgaged Ship under the
laws and flag of the relevant Flag State is cancelled or terminated without the
prior written consent of the Bank or if such


 


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registration of any
Mortgaged Ship is not renewed at least forty five (45) days prior to the expiry
of such registration; or


 


10.1.24            Unrest:
the Flag State in respect of a Mortgaged Ship becomes involved
in hostilities or civil war or there is a seizure of power in any Flag State in
respect of a Mortgaged Ship by unconstitutional means if, in any such case,
such event could in the opinion of the Bank reasonably be expected to have a
material adverse effect on the security constituted by any of the Security
Documents; or


 


10.1.25            Environment: either of the Borrowers and/or any other Relevant
Party and/or any of their respective Environmental Affiliates fails to comply
with any Environmental Law or any Environmental Approval or either of the
Borrowers and/or any other Relevant Party and/or any of their respective
Environmental Affiliates or any Ship or any other Relevant Ship is involved in
any incident which gives rise or may give rise to an Environmental Claim if, in
any such case, such non-compliance or incident or the consequences thereof
could, in the opinion of the Bank reasonably be expected to have a material
adverse effect on the business, assets, operations, property or financial
condition of either of the Borrowers or the Corporate Guarantor or any other
Security Party or on the security constituted by any of the Security Documents;
or


 


10.1.26            P&I: any Owner or the Manager or any other person fails
or omits to comply with any requirements of the protection and indemnity
association or other insurer with which a Ship is entered for insurance or
insured against protection and indemnity risks (including oil pollution risks)
to the effect that any cover (including, without limitation, any cover in
respect of liability for Environmental Claims arising in jurisdictions where
such Ship operates or trades) is or may be liable to cancellation,
qualification or exclusion at any time; or


 


10.1.27            Shareholdings:


 


(a)          prior to the
Listing, there is any change in the legal and/or ultimate beneficial ownership
of any of the shares in either of the Borrowers or any Owner or the Corporate
Guarantor from that existing on the date of this Agreement as specified in
clause 7.1.10; or


 


(b)         after the Listing,
there is any change in the legal and/or ultimate beneficial ownership of any of
the shares in the AMPNI Borrower which results in Mr Dimitrios Melissanidis
being the ultimate beneficial owner of less than 35% of the total issued voting
share capital of the AMPNI Borrower; or


 


(c)          after the Listing,
there is any change in the legal and/or beneficial ownership of any of the
shares in the AMPSA Borrower or any Owner or the Corporate Guarantor which
results in any such Security Party ceasing to be a wholly-owned direct or
indirect Subsidiary of the AMPNI Borrower; or


 


10.1.28            Termination or variation of, or dispute under, Contracts and Supervision
Contracts:  any Contract
or Supervision Contract is terminated or rescinded for any reason whatsoever;
or any Contract or Supervision Contract is frustrated; or any Contract or
Supervision Contract is varied in any manner not permitted by or pursuant to
the relevant Pre-delivery Security Assignment or this Agreement; or there is
any dispute or litigation or any other proceedings between the relevant parties
under or in respect of any Contract or any Supervision Contract; or


 


10.1.29            Termination of Refund Guarantees:  any Refund Guarantee expires or is
repudiated, cancelled, rescinded or otherwise terminated (other than by the
return of such Refund Guarantee by the relevant Newbuilding Owner to the
Builders or either of them and/or the relevant Refund Guarantor following the
Delivery of the Newbuilding to which such Refund Guarantee relates); or


 


10.1.30            Non-delivery of Newbuildings:  any
Newbuilding is not delivered to, and accepted by, the relevant Newbuilding
Owner under the relevant Contract or the Delivery Advance for any Newbuilding
is not drawn down, in either case, on or before the end of the Drawdown Period
for the Delivery Advance relevant to such Newbuilding; or


 


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10.1.31            Accounts: moneys are withdrawn from any of the Accounts other
than in accordance with clause 14; or


 


10.1.32            Listing: following the Listing Date, the shares of the AMPNI
Borrower are de-listed or suspended from, or cease to trade (whether
temporarily or permanently) on, the New York Stock Exchange; or


 


10.1.33            Licenses, etc:  any license,
authorisation, consent or approval at any time necessary to enable any Security
Party to comply with its obligations under the Security Documents or the
Underlying Documents is revoked or withheld or modified or is otherwise not
granted or fails to remain in full force and effect or if any exchange control
or other law or regulation shall exist which would make any transaction under
the Security Documents or the Underlying Documents or the continuation thereof,
unlawful or would prevent the performance by any Security Party of any term of
any of the Security Documents or the Underlying Documents; or


 


10.1.34            Material events: any other event occurs or circumstance arises
which, in the reasonable opinion of the Bank, is likely materially and
adversely to affect either (i) the ability of any Security Party to
perform all or any of its obligations under or otherwise to comply with the
terms of any of the Security Documents or (ii) the security created by any
of the Security Documents.


 


10.2                           Acceleration


 


The Bank may, without prejudice to any other
rights of the Bank, at any time after the happening of an Event of Default by
notice to the Borrowers declare that:


 


10.2.1                  the
obligation of the Bank to make the Commitment, the Overdraft Facility and the
Guarantee Facility available shall be terminated, whereupon the Commitment, the
Overdraft Facility Limit and the Guarantee Facility Commitment shall each be
reduced to zero forthwith; and/or


 


10.2.2                  the Loan
and all interest and commissions accrued and all other sums payable under the
Security Documents have become due and payable, whereupon the same shall,
immediately or in accordance with the terms of such notice, become due and
payable; and/or


 


10.2.3                  make a
demand on the Borrowers pursuant to clause 8.7 for payment of cash collateral
to the Bank for credit to the Cash Collateral Account forthwith and/or at any
other time specified by the Bank, whereupon any such amount shall become due
and payable immediately or in accordance with each such notice (it being
understood that the Bank shall be entitled to give multiple such notices for
further payment of moneys by the Borrowers to the Cash Collateral Account, at
any time and from time to time following an Event of Default, notwithstanding
that the Borrowers may have complied with one or more earlier notices).


 


10.3                           Demand
basis


 


If, pursuant to clause 10.2.2, the Bank
declares the Loan to be due and payable on demand, the Bank may by written
notice to the Borrowers (a) call for repayment of the Loan on such date as
may be specified whereupon the Loan shall become due and payable on the date so
specified together with all interest and commissions accrued and all other sums
payable under this Agreement or (b) withdraw such declaration with effect
from the date specified in such notice.


 


10.4                           Negotiation
with Beneficiaries after Event of Default


 


Each Borrower:


 


10.4.1                  irrevocably
authorises the Bank to negotiate with any Beneficiary at any time after the
occurrence of any Default with a view to arranging for the prepayment by the
Bank, for the account of the Borrowers, of any moneys outstanding under any
L/C; and


 


10.4.2                  agrees
that at any time after the occurrence of any Default the Bank shall be entitled
(but not, so far as the Borrowers are concerned, bound) to pay to a
Beneficiary, in such manner and upon such terms as the Bank and the Beneficiary
shall agree, any moneys outstanding under any L/C.


 


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11                                          Indemnities


 


11.1                           Miscellaneous
indemnities


 


The Borrowers shall on
demand indemnify the Bank, without prejudice to any of the Bank’s other rights
under any of the Security Documents, against any loss (including loss of
Margin) or expense which the Bank shall certify as sustained or incurred by it
as a consequence of:


 


11.1.1                  any
default in payment by the Borrowers of any sum under any of the Security
Documents when due;


 


11.1.2                  the
occurrence of any other Event of Default;


 


11.1.3                  any
prepayment or repayment of a Tranche or part thereof being made under
clauses 4.3, 8.2.1, 8.2.7 or 12.1 or any other repayment or prepayment of
a Tranche or part thereof being made otherwise than on an Interest Payment Date
relating to the part of the Tranche prepaid or repaid;


 


11.1.4                  any
Advance not being made for any reason (excluding any default by the Bank) after
the Drawdown Notice in relation thereto has been given; or


 


11.1.5                  any L/C
not being issued for any reason (excluding any default by the Bank) after the
Issue Request in relation thereto has been given,


 


including, in any such case, but not limited
to, any loss or expense sustained or incurred in maintaining or funding a
Tranche or the Overdraft or any loans advanced by the Bank pursuant to clause
2.23.3 (or any part thereof) or in liquidating or re-employing deposits from
third parties acquired to effect or maintain a Tranche or the Overdraft or any
loans advanced by the Bank pursuant to clause 2.23.3 (or any part thereof).


 


11.2                           Currency
indemnity


 


If any sum due from the Borrowers under any of
the Security Documents or any order or judgment given or made in relation
thereto has to be converted from the currency (the “first currency”) in which the same is payable under the
relevant Security Document or under such order or judgment into another
currency (the “second currency”)
for the purpose of (a) making or filing a claim or proof against the
Borrowers or either of them, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given or
made in relation to any of the Security Documents, the Borrowers shall
indemnify and hold harmless the Bank from and against any loss suffered as a
result of any difference between (i) the rate of exchange used for such
purpose to convert the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which the Bank may in
the ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof. Any amount due from the Borrowers
under this clause 11.2 shall be due as a separate debt and shall not be
affected by judgment being obtained for any other sums due under or in respect of
any of the Security Documents and the term “rate
of exchange” includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second currency.


 


11.3                           Environmental
indemnity


 


The Borrowers shall indemnify the Bank on
demand and hold the Bank harmless from and against all costs, expenses,
payments, charges, losses, demands, liabilities, actions, proceedings (whether
civil or criminal), penalties, fines, damages, judgements, orders, sanctions or
other outgoings of whatever nature which may be suffered, incurred or paid by,
or made or asserted against the Bank at any time, whether before or after the
repayment in full of principal and interest under this Agreement, relating to,
or arising directly or indirectly in any manner or for any cause or reason
whatsoever out of an Environmental Claim made or asserted against the Bank if
such Environmental Claim would not have been, or been capable of being, made or
asserted against the Bank if it had not entered into any of the Security
Documents


 


65

















 


and/or exercised any of its rights, powers and
discretions thereby conferred and/or performed any of its obligations
thereunder and/or been involved in any of the transactions contemplated by the
Security Documents.


 


12                                  Unlawfulness and increased costs


 


12.1                           Unlawfulness


 


If it is or becomes contrary to any law or
regulation for the Bank to make any Advance or to maintain the Commitment, the
Overdraft Facility or the Guarantee Facility Commitment or to fund the Term
Loan or the Overdraft or the Outstandings or to issue any L/Cs, the Bank shall
promptly give notice to the Borrowers whereupon (a) the Commitment, the
Overdraft Facility Limit and the Guarantee Facility Commitment shall each be
reduced to zero and (b) the Borrowers shall be obliged to prepay the Loan
either (i) forthwith or (ii) on a future specified date not being
earlier than the latest date permitted by the relevant law or regulation
together with interest and commitment commission accrued to the date of
prepayment and all other sums payable by the Borrowers under this Agreement
and/or the Master Swap Agreement.


 


12.2                           Increased
costs


 


If the result of any change in, or in the
interpretation or application of, or the introduction of, any law or any
regulation, request or requirement (whether or not having the force of law,
but, if not having the force of law, with which the Bank or, as the case may
be, its holding company habitually complies), including (without limitation)
those relating to Taxation, capital adequacy, liquidity, reserve assets, cash
ratio deposits and special deposits, is to:


 


12.2.1                  subject
the Bank to Taxes or change the basis of Taxation of the Bank with respect to
any payment under any of the Security Documents (other than Taxes or Taxation
on the overall net income, profits or gains of the Bank imposed in the
jurisdiction in which its principal or lending office under this Agreement is
located); and/or


 


12.2.2                  increase
the cost to, or impose an additional cost on, the Bank or its holding company
in making or keeping the Commitment, the Overdraft Facility or the Guarantee
Facility Commitment available or maintaining or funding all or part of the Loan
or the Outstandings or issuing any L/C; and/or


 


12.2.3                  reduce the
amount payable or the effective return to the Bank under any of the Security
Documents; and/or


 


12.2.4                  reduce the
Bank’s or its holding company’s rate of return on its overall capital by reason
of a change in the manner in which it is required to allocate capital resources
to the Bank’s obligations under any of the Security Documents; and/or


 


12.2.5                  require
the Bank or its holding company to make a payment or forego a return on or
calculated by reference to any amount received or receivable by the Bank under
any of the Security Documents; and/or


 


12.2.6                  require
the Bank or its holding company to incur or sustain a loss (including a loss of
future potential profits) by reason of being obliged to deduct all or part of
the Commitment, the Overdraft Facility or the Guarantee Facility Commitment or
the Loan or the Outstandings from its capital for regulatory purposes,


 


then and in each such case (subject to
clause 12.3):


 


(a)          the Bank shall
notify the Borrowers in writing of such event promptly upon its becoming aware
of the same; and


 


(b)         the Borrowers shall
on demand pay to the Bank the amount which the Bank specifies (in a certificate
and supporting documents setting forth and evidencing the basis of the
computation of such amount but not including any matters which the Bank or its
holding


 


66

















 


company regards as confidential) is required to compensate the Bank
and/or (as the case may be) its holding company for such liability to Taxes,
cost, reduction, payment, foregone return or loss.


 


For the purposes of this clause 12.2, “holding company” means the company or
entity (if any) within the consolidated supervision of which the Bank is
included.


 


12.3                           Exception


 


Nothing in clause 12.2 shall entitle the
Bank to receive any amount in respect of compensation for any such liability to
Taxes, increased or additional cost, reduction, payment, foregone return or
loss (a) to the extent that the same is taken into account in calculating the
Additional Cost or (b) to the extent that the same is the subject of an
additional payment under clause 6.6.


 


13                                  Security and set-off


 


13.1                           Application
of moneys


 


All moneys received by the Bank under or
pursuant to any of the Security Documents and expressed to be applicable in
accordance with the provisions of this clause 13.1 shall be applied by the
Bank in the following manner:


 


13.1.1                  first, in
or towards payment of all unpaid costs, expenses, fees and commissions which
may be owing to the Bank under any of the Security Documents;


 


13.1.2                  secondly,
in or towards payment of any arrears of interest owing in respect of the Loan
or any part thereof;


 


13.1.3                  thirdly,
in or towards repayment of the Loan or any loan outstanding under clause 2.23.3
or any part thereof (whether the same is due and payable or not);


 


13.1.4                  fourthly,
in or towards payment to the credit of the Cash Collateral Account of any
moneys payable thereto pursuant to clauses 2.29 and/or 4.3 and/or 8.2.7 and/or
8.7 and/or 10.2.3 and/or any other term of this Agreement;


 


13.1.5                  fifthly,
in or towards payment to the Bank for any loss suffered by reason of any such
payment in respect of principal not being effected on an Interest Payment Date
relating to the part of the Term Loan repaid;


 


13.1.6                  sixthly,
in or towards payment to the Bank of any sum owing under the Master Swap
Agreement;


 


13.1.7                  seventhly,
in or towards payment to the Bank of any other sums owing to it under any of
the Security Documents; and


 


13.1.8                  eighthly,
the surplus (if any) shall be paid to the Borrowers or to whomsoever else may
be entitled to receive such surplus.


 


13.2                           Set-off


 


13.2.1                  The
Borrowers authorise the Bank (without prejudice to any of the Bank’s rights at
law, in equity or otherwise), at any time and without notice to the Borrowers,
to apply any credit balance to which the Borrowers or either of them is then
entitled standing upon any account of the Borrowers or either of them with any
branch of the Bank in or towards satisfaction of any sum due and payable from
the Borrowers or either of them to the Bank under any of the Security
Documents. For this purpose, the Bank is authorised to purchase with the moneys
standing to the credit of such account such other currencies as may be
necessary to effect such application.


 


13.2.2                  Without
prejudice to its rights hereunder and/or under the Master Swap Agreement, the
Bank may at the same time as, or at any time after, any Default under this
Agreement or the Borrowers’ default under the Master Swap Agreement, set-off
any amount due now or in the


 


67

















 


future from the Borrowers or either of them to
the Bank under this Agreement against any amount due from the Bank to the
Borrowers or either of them under the Master Swap Agreement and apply the first
amount in discharging the second amount. The effect of any set-off under this
sub-clause 13.2.2 shall be effective to extinguish or, as the case may
require, reduce the liabilities of the Bank under the Master Swap Agreement.


 


13.2.3                  The Bank
shall not be obliged to exercise any right given to it by this
clause 13.2. The Bank shall notify the Borrowers forthwith upon the
exercise or purported exercise of any right of set-off giving full details in
relation thereto.


 


13.3                           Further
assurance


 


The Borrowers jointly and severally undertake
with the Bank that the Security Documents shall both at the date of execution
and delivery thereof and so long as any moneys are owing under any of the
Security Documents be valid and binding obligations of the respective parties
thereto and rights of the Bank enforceable in accordance with their respective
terms and that it will, at its expense, execute, sign, perfect and do, and will
procure the execution, signing, perfecting and doing by each of the other
Security Parties of, any and every such further assurance, document, act or
thing as in the reasonable opinion of the Bank may be necessary or desirable
for perfecting the security contemplated or constituted by the Security
Documents.


 


13.4                           Conflicts


 


In the event of any conflict between this
Agreement and any of the other Borrowers’ Security Documents, the provisions of
this Agreement shall prevail.


 


14                                  Accounts


 


14.1                           General


 


The Borrowers jointly and severally undertake
with the Bank that:


 


14.1.1                  on or
before the date of this Agreement, the AMPNI Borrower will open the AMPNI
Operating Account;


 


14.1.2                  on or
before the date of this Agreement, the AMPSA Borrower will open the AMPSA
Operating Account, the Overdraft Account and the Cash Collateral Account;


 


14.1.3                  on or before
the first Drawdown Date under this Agreement, the Corporate Guarantor will open
the Manager’s Operating Account;


 


14.1.4                  they will
procure that all moneys payable to each Owner in respect of the Earnings of
such Owner’s Ship shall, unless and until the Bank directs to the contrary
pursuant to the provisions of the relevant Deed of Covenant, be paid at all
times to the Account relating to such Ship;


 


14.1.5                  they will
procure that all moneys payable to the Borrowers under the Master Swap
Agreement shall be paid at all times to the AMPNI Operating Account;


 


14.1.6                  they will
procure that all Receivables shall be paid at all times to the AMPSA Operating
Account; and


 


14.1.7                  they will
procure that there are sufficient funds standing to the credit of the Cash Collateral
Account at all times to ensure that the Borrowers are in compliance with each
of the following clauses:


 


(a)          clause 2.29; and


 


(b)         clause 4.3; and


 


(c)          clauses 8.2.1 and
8.2.7,


 


68

















 


it being agreed, for the avoidance of doubt,
that, for the purpose of testing the Borrowers’ compliance with each of the
clauses referred to in paragraphs (a), (b) and (c), funds standing to the
credit of the Cash Collateral Account and taken into account for the purpose of
testing compliance with one of the clauses referred to in paragraph (a) or
paragraph (b) or paragraph (c) above, shall not be taken into account for the
purpose of testing compliance with any other clause referred to in any of the
other two paragraphs. The AMPSA Borrower shall not be entitled to withdraw any
funds from the Cash Collateral Account following a notice given by the Bank
pursuant to clause 12.1.


 


14.2                           Borrowers’
Accounts: withdrawals


 


Neither Borrower shall be entitled to withdraw
moneys from any of their own Accounts provided however that, unless and until a
Default shall occur and the Bank shall direct to the contrary:


 


14.2.1                  the AMPNI
Borrower may withdraw moneys from the AMPNI Operating Account to make any
payment not expressly prohibited by the terms of this Agreement or any other
Security Document Provided always that:


 


(a)          subject to
paragraphs (b), (c) and (d) below, there are and, following any such
withdrawal, there will be sufficient funds standing to the credit of the AMPNI
Operating Account to ensure that the Borrowers are in compliance with clause
8.1.14 at all times; and


 


(b)         if the Borrowers
advise the Bank in writing that an Additional Owner is to purchase an
Additional Ship, in cash and without any debt or other financing, the AMPNI
Borrower shall be entitled to withdraw funds from the AMPNI Operating Account
for the purpose of on-lending such funds to the relevant Additional Owner to
assist such Owner in paying to the relevant Additional Ship Seller the purchase
price for the relevant Additional Ship pursuant to the relevant Additional
Contract, subject always to clause 8.1.15(b); and


 


(c)          in the event that
the AMPNI Borrower makes any such withdrawal in accordance with paragraph (b)
above, the amount required to be held by the Borrowers to the credit of the
AMPNI Operating Account for the purposes of clause 8.1.14 shall, from the date
of such withdrawal, be reduced by the amount of such withdrawal; and


 


(d)         the AMPNI Borrower
shall be entitled to make withdrawals from the AMPNI Operating Account pursuant
to paragraph (b) above for the purpose of assisting in the payment of the
purchase price of no more than three (3) vessels (being Additional Ships), one
by each Additional Owner, however, only one such withdrawal may be made in
relation to each Additional Ship and the amount of each withdrawal in relation
to an Additional Ship can be up to (but it may not exceed) the full amount of
the purchase price for that Additional Ship under the relevant Additional
Contract.


 


14.2.2                  the AMPSA
Borrower may withdraw moneys from the Overdraft Account for the purposes
specified in clause 1.1.2 subject always to clause 8.1.3(b);


 


14.2.3                  the AMPSA
Borrower may, subject to clause 14.1.7, withdraw moneys from the Cash
Collateral Account for any purpose not expressly prohibited by the terms of
this Agreement or any other Security Document provided that there are and,
following any such withdrawal, there will be sufficient funds in the Cash
Collateral Account to ensure that the Borrowers are in compliance with clause
14.1.7; and


 


14.2.4                  the AMPSA
Borrower may withdraw moneys from the AMPSA Operating Account only for the
following purposes:


 


(a)          to make payments to
the credit of the Cash Collateral Account; and


 


(b)         provided that there
are and, following any such withdrawal there will be, sufficient funds in the
Cash Collateral Account to ensure that the Borrowers are in compliance with


 


69

















 


clause 14.1.7, for any other purpose not expressly prohibited by the
terms of this Agreement or the other Security Documents.


 


14.3                           Interest


 


Amounts standing to the credit of each Account
of a Borrower (other than the Overdraft Account) shall bear interest at the
rate (unless otherwise agreed between the Bank and the relevant Borrower) which
is certified by the Bank to that Borrower to be the rate quoted by the Bank to
its customers for deposits in Dollars for such period as the Bank may determine
and in an amount comparable with the amount for the time being standing to the
credit of that Account, such interest to be credited to such Account at the
expiry of each such period of deposit and to accrue from day to day and to be
calculated on the basis of a three hundred and sixty (360) day year and the
actual number of days elapsed Provided
however that the Overdraft Account shall be a non-interest bearing
account.


 


14.4                           Set-off


 


Without in any way affecting the rights of the
Bank under clause 13.2, upon the occurrence of a Default or at any time
thereafter the Bank shall be entitled to set-off and apply all sums standing to
the credit of any Account of a Borrower and accrued interest (if any) thereon
without notice to the Borrowers in the manner specified in clause 13.1.


 


14.5                           Deductions


 


The Bank shall be entitled (but not obliged) at
any time to deduct from the balance for the time being standing to the credit
of any Account of a Borrower all other moneys which may fall due to be paid to
the Bank under the terms of this Agreement and the other Security Documents or
otherwise howsoever in connection with the Aggregate Liabilities and/or the
Master Swap Agreement.


 


14.6                           Charging
of Borrowers’ Accounts


 


Each Borrower with full title guarantee hereby
charges and agrees to charge, by way of first fixed charge and releases and agrees
to release to the Bank, as a continuing security for the payment of the
Aggregate Liabilities, interest thereon and all other moneys from time to time
owing, whether actually or contingently, under this Agreement, the Master Swap
Agreement and the other Security Documents (for the purposes of this clause
14.6, the “Outstanding Indebtedness”),
such Borrower’s Accounts (being, for the avoidance of doubt, the AMPNI
Operating Account in the case of the AMPNI Borrower, and the Overdraft Account,
the Cash Collateral Account and the AMPSA Operating Account in the case of the
AMPSA Borrower) and all moneys from time to time standing to the credit of each
such Borrower’s Account, including any interest from time to time accrued and
accruing thereon (whether or not credited thereto) and neither Borrower shall
be entitled to withdraw any such monies from any of such Accounts otherwise
than in accordance with this clause 14 until such time as the Outstanding
Indebtedness has been conclusively certified by the Bank to have been repaid in
full.


 


14.7                           Representations
and warranties


 


14.7.1                  The AMPNI
Borrower hereby represents and warrants to the Bank that:


 


(a)          it is the sole,
absolute, legal and beneficial owner of, and has good right and title to the
AMPNI Operating Account; and


 


(b)         neither the AMPNI
Operating Account nor any part thereof is subject to any Encumbrance save as
constituted by this Agreement.


 


14.7.2                  The AMPSA
Borrower hereby represents and warrants to the Bank that:


 


(a)          it is the sole,
absolute, legal and beneficial owner of, and has good right and title to each
of the AMPSA Operating Account, the Overdraft Account and the Cash Collateral
Account; and


 


70

















 


(b)         neither the AMPSA
Operating Account nor the Overdraft Account nor the Cash Collateral Account nor
any part thereof is subject to any Encumbrance save as constituted by this
Agreement.


 


14.8                           Account
Pledges


 


The Borrowers hereby acknowledge that each of
the AMPNI Operating Account, the AMPSA Operating Account and the Cash
Collateral Account shall be subject to the relevant Account Pledges and the
rights of the Bank thereunder.


 


15                                  Assignment, transfer and lending office


 


15.1                           Benefit
and burden


 


This Agreement shall be binding upon, and enure
for the benefit of, the Bank and the Borrowers and their respective successors
in title.


 


15.2                           No
assignment by Borrowers


 


Neither of the Borrowers may assign or transfer
any of its rights or obligations under this Agreement.


 


15.3                           Assignment
by Bank


 


The Bank may assign all or any part of its
rights under this Agreement, the Master Swap Agreement (notwithstanding the
terms of Section 7 of the Master Swap Agreement) or under any of the other
Security Documents to any other bank or financial institution (an “Assignee”) without the consent of the
Borrowers (the Borrowers consenting to any such assignment by their execution
of this Agreement).


 


15.4                           Transfer


 


The Bank may transfer all or any part of its
rights, benefits and/or obligations under this Agreement and/or any of the
other Security Documents to any one or more banks or other financial
institutions (a “Transferee”)
without the consent of the Borrowers (the Borrowers consenting to any such
transfer by their execution of this Agreement) if the Transferee, by delivery
of such undertaking as the Bank may approve, becomes bound by the terms of this
Agreement and agrees to perform all or, as the case may be, part of the Bank’s
obligations under this Agreement.


 


15.5                           Documenting
assignments and transfers


 


If the Bank assigns all or any part of its
rights or transfers all or any part of its rights, benefits and/or obligations
as provided in clauses 15.3 or 15.4, the Borrowers jointly and severally
undertake, immediately on being requested to do so by the Bank and at the cost
of the Bank, to enter into, and procure that the other Security Parties shall
enter into, such documents as may be necessary or desirable to transfer to the
Assignee or Transferee all or the relevant part of the Bank’s interest in the
Security Documents and all relevant references in this Agreement to the Bank
shall thereafter be construed as a reference to the Bank and/or its Assignee or
Transferee (as the case may be) to the extent of their respective interests.


 


15.6                           Lending
office


 


The Bank shall lend through its office at the
address specified in the definition of “Bank”
in clause 1.2 of this Agreement or through any other office of the Bank
selected from time to time by it through which the Bank wishes to lend for the
purposes of this Agreement. If the office through which the Bank is lending is
changed pursuant to this clause 15.6, the Bank shall notify the Borrowers
promptly of such change.


 


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15.7                           Disclosure
of information


 


The Bank may disclose to a prospective
assignee, transferee or to any other person who may propose entering into
contractual relations with the Bank in relation to this Agreement such
information about the Borrowers as the Bank shall consider appropriate.


 


16                                  Notices and other matters


 


16.1                           Notices


 


Every notice, request, demand or other
communication under this Agreement or (unless otherwise provided therein) under
any of the other Security Documents shall:


 


16.1.1                  be in
writing delivered personally or by first-class prepaid letter (airmail if
available) or facsimile transmission or other means of telecommunication in
permanent written form;


 


16.1.2                  be deemed
to have been received, subject as otherwise provided in the relevant Security
Document, in the case of a letter, when delivered personally or three (3) days
after it has been put in the post and, in the case of a facsimile transmission
or other means of telecommunication in permanent written form, upon receipt of
confirmation that the facsimile transmission has been received (provided that
if the date receipt is not a business day in the country of the addressee or if
the time of receipt is after the close of business in the country of the
addressee it shall be deemed to have been received at the opening of business
on the next such business day); and


 


16.1.3                  be sent:


 


(a)               if to the Borrowers
or either of them at:


 


c/o Aegean Bunkering Services Inc.


42 Hatzikiriakou Street


185 38 Piraeus


Greece


 


Fax
no:          +30 210 458 6242


Attention:     Mr
Apostolos Manitsas


 


(b)              if to the Bank at:


 


The Royal Bank of Scotland plc


Piraeus Branch


45 Akti Miaouli


185 36 Piraeus


Greece


 


Fax
No:        +30 210 459 6600


Attention:     Shipping
Department


 


or to such other address and/or numbers as is
notified by one party to the other party under this Agreement.


 


16.2                           No implied
waivers, remedies cumulative


 


No failure or delay on the part of the Bank to
exercise any power, right or remedy under any of the Security Documents shall
operate as a waiver thereof, nor shall any single or partial exercise by the
Bank of any power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy. The remedies
provided in the Security Documents are cumulative and are not exclusive of any
remedies provided by law.


 


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16.3                           English
language


 


All certificates, instruments and other
documents to be delivered under or supplied in connection with any of the
Security Documents shall be in the English language or shall be accompanied by
a certified English translation upon which the Bank shall be entitled to rely.


 


16.4                           Borrowers’
obligations


 


16.4.1                  Joint and
several


 


Notwithstanding anything to the contrary
contained in any of the Security Documents, the agreements, obligations and
liabilities of the Borrowers herein contained are joint and several and shall
be construed accordingly. Each of the Borrowers agrees and consents to be bound
by the Security Documents to which it is, or is to be, a party notwithstanding
that the other Borrower which is intended to sign or to be bound may not do so
or be effectually bound and notwithstanding that any of the Security Documents
may be invalid or unenforceable against the other Borrower, whether or not the
deficiency is known to the Bank.


 


16.4.2                  Borrowers
as principal debtors


 


Each Borrower acknowledges and confirms that it
is a principal and original debtor in respect of all amounts which may become
payable by the Borrowers in accordance with the terms of this Agreement or the Master
Swap Agreement or any of the other Security Documents and agrees that the Bank
may also continue to treat it as such, whether or not the Bank is or becomes
aware that such Borrower is or has become a surety for the other Borrower.


 


16.4.3                  Indemnity


 


The Borrowers hereby agree jointly and
severally to keep the Bank fully indemnified on demand against all damages,
losses, costs and expenses (provided that, in the case of such costs and
expenses, they are reasonable and documented) 
arising from any failure of either Borrower to perform or discharge any
purported obligation or liability of the other Borrower which would have been
the subject of this Agreement or the Master Swap Agreement or any other
Security Document had it been valid and enforceable and which is not or ceases
to be valid and enforceable against a Borrower on any ground whatsoever,
whether or not known to the Bank (including, without limitation, any irregular
exercise or absence of any corporate power or lack of authority of, or breach of
duty by, any person purporting to act on behalf of a Borrower (or any legal or
other limitation, whether under the Limitation Acts or otherwise or any
disability or death, bankruptcy, unsoundness of mind, insolvency, liquidation,
dissolution, winding up, administration, receivership, amalgamation,
reconstruction or any other incapacity of any person whatsoever (including, in
the case of a partnership, a termination or change in the composition of the
partnership) or any change of name or style or constitution of any Security
Party)).


 


16.4.4                  Liability
unconditional


 


None of the obligations or liabilities of a
Borrower under this Agreement or the Master Swap Agreement or any other
Security Document shall be discharged or reduced by reason of:


 


(a)          the death,
bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution,
winding-up, administration, receivership, amalgamation, reconstruction or other
incapacity of any person whatsoever (including, in the case of a partnership, a
termination or change in the composition of the partnership) or any change of
name or style or constitution of the other Borrowers or either of them or any
other person liable;


 


(b)         the Bank granting
any time, indulgence or concession to, or compounding with, discharging, releasing
or varying the liability of, the other Borrower or any other person liable or
renewing, determining, varying or increasing any accommodation, facility or
transaction or otherwise dealing with the same in any manner whatsoever or
concurring in, accepting, varying any compromise, arrangement or settlement or
omitting to claim or enforce payment from the other Borrower or any other
person liable; or


 


73

















 


(c)          anything done or
omitted which but for this provision might operate to exonerate the Borrowers
or either of them.


 


16.4.5                  Recourse
to other security


 


The Bank shall not be obliged to make any claim
or demand or to resort to any Security Document or other means of payment now
or hereafter held by or available to it for enforcing this Agreement or the
Master Swap Agreement or any of the Security Documents against a Borrower or
any other person liable and no action taken or omitted by the Bank in
connection with any such Security Document or other means of payment will
discharge, reduce, prejudice or affect the liability of the Borrowers under
this Agreement, the Master Swap Agreement and the Security Documents to which
any of them is, or is to be, a party.


 


16.4.6                  Waiver of
Borrowers’ rights


 


Each Borrower agrees with the Bank that, from
the date of this Agreement and so long as any moneys are owing under any of the
Security Documents and/or the Master Swap Agreement and while all or any part
of the Commitment remains outstanding, it will not, without the prior written
consent of the Bank:


 


(a)          exercise any right
of subrogation, reimbursement and indemnity against the other Borrower or any
other person liable under the Security Documents;


 


(b)         demand or accept
repayment in whole or in part of any Indebtedness now or hereafter due to such
Borrower from the other Borrower or from any other person liable or demand or
accept any guarantee, indemnity or other assurance against financial loss or
any document or instrument created or evidencing an Encumbrance in respect of
the same or dispose of the same;


 


(c)          take any steps to
enforce any right against the other Borrower or any other person liable in
respect of any such moneys; or


 


(d)         claim any set-off
or counterclaim against the other Borrower or any other person liable or
claiming or proving in competition with the Bank in the liquidation of the
other Borrower or any other person liable or have the benefit of, or share in,
any payment from or composition with, the other Borrower or any other person
liable or any other Security Document now or hereafter held by the Bank for any
moneys owing under this Agreement and/or the Master Swap Agreement or for the
obligations or liabilities of any other person liable but so that, if so
directed by the Bank, it will prove for the whole or any part of its claim in
the liquidation of the other Borrower or other person liable on terms that the
benefit of such proof and all money received by it in respect thereof shall be
held on trust for the Bank and applied in or towards discharge of any moneys
owing under this Agreement and/or the Master Swap Agreement in such manner as
the Bank shall deem appropriate.


 


16.5                           Maximum
liability


 


16.5.1                  Each
Borrower shall be entitled to rights of contribution as against the other
Borrower, however, such rights of contribution shall (a) not in any way (except
as otherwise expressly set forth in clause 16.5.2 below) condition or lessen
the liability of each Borrower as a joint and several borrower for the whole of
the obligations owed to the Bank hereunder, and under the Security Documents
and (b) shall be fully subject and subordinate to the rights of the Bank
against the Borrowers hereunder, and under the Security Documents.


 


16.5.2                  Notwithstanding
anything to the contrary contained in this Agreement, or any of the Security
Documents, in the event that any court or other judicial body of competent
jurisdiction determines that legal principles of fraudulent conveyances,
fraudulent transfers or similar concepts are applicable in evaluating the
enforceability against any particular Borrower or its assets of this Agreement
or any Security Document granted by such Borrower as security for its
obligations hereunder and that under such principles, this Agreement or such
other Security Documents would not be enforceable against such Borrower or its
asset unless the following provisions of this clause 16.5.2 had effect, then,
the maximum liability of such Borrower hereunder (the


 


74

















 


“Maximum
Liability Amount”) shall be limited such that in no event shall such
amount exceed the lesser of (i) the obligations of such Borrower hereunder (in
the principal amount of up to $183,400,000, plus interest, expenses, fees and
any amounts owing under the Master Swap Agreement), and (ii) an amount equal to
the aggregate, without double counting, of (a) ninety-five percent (95%) of
such Borrower’s Adjusted Net Worth (as hereinafter defined) on the date hereof,
on the date of commencement of a case under the Bankruptcy Code of the United
States of America, as amended (11 U.S.C. ss 101-1330) (the “Bankruptcy Code”) or any similar
legislation in any other jurisdiction, in which such Borrower is a debtor, or
on the date enforcement of this Agreement is sought (the “Determination Date”), whichever is greater,
(b) the aggregate fair value of such Borrower’s Subrogation and Contribution
Rights (as hereinafter defined) and (c) the amount of any Valuable Transfer (as
hereinafter defined) to such Borrower; provided that each Borrower’s liability under
this Agreement shall further be limited to the extent, if any, required so that
the obligations of each Borrower under this Agreement shall not be subject to
avoidance under Section 548 of the Bankruptcy Code or any similar provision
under the legislation of any other relevant jurisdiction, or to being set aside
or annulled under any applicable law relating to fraudulent transfers or
fraudulent conveyances. In determining the limitations, if any, on the amount
of either Borrower’s obligations hereunder pursuant to the preceding sentence,
any rights of subrogation or contribution (collectively the “Subrogation and Contribution Rights”) which
such Borrower may have on the Determination Date with respect to the Funding
Borrower (as hereinafter defined) under applicable law shall be taken into
account.


 


16.5.3                  As used
herein “Adjusted Net Worth” of
each Borrower shall mean, as of any date of determination thereof, an amount
equal to the lesser of (a) an amount equal to the excess of (i) the amount of
the present fair saleable value of the assets of such Borrower over (ii) the
amount that will be required to pay such Borrower’s probable liability on its
then existing debts, including contingent liabilities, as they become absolute
and matured, and (b) an amount equal to the excess of (i) the sum of such
Borrower’s property at a fair valuation over (ii) the amount of all liabilities
of such Borrower, contingent or otherwise, as such terms are construed in
accordance with applicable federal and state laws in the United States of
America, or the laws of other applicable jurisdictions, governing
determinations of the insolvency of debtors.


 


16.5.4                  In
determining the Adjusted Net Worth of each Borrower for purposes of calculating
the Maximum Liability Amount for such Borrower, the liabilities of such
Borrower to be used in such determination pursuant to each section (ii) of
clause 17.6.3 shall in any event exclude (a) the liabilities of such Borrower
under this Agreement, (b) any liabilities of such Borrower subordinated in
right of payment to this Agreement and (c) any liabilities of such Borrower for
Subrogation and Contribution Rights to the other Borrower.


 


16.5.5                  As used
herein “Valuable Transfer” shall
mean, in respect of each Borrower, (a) all loans, advances or capital
contributions made to such Borrower with proceeds of the Loan made under this
Agreement, (b) all debt securities or other obligations of such Borrower
acquired from such Borrower or retired by such Borrower with proceeds of the
Loan made under this Agreement and transferred, absolutely and not as
collateral, to such Borrower (c) the fair market value of all property acquired
with proceeds of the Loan made under this Agreement and transferred, absolutely
and not as collateral, to such Borrower, (d) all equity securities of such
Borrower acquired from such Borrower with proceeds of the Loan made under this
Agreement and (e) the value of any other economic benefits in accordance with
applicable federal and state laws, or the laws of other applicable jurisdictions,
governing determinations of the insolvency of debtors, in each case accruing to
such Borrower as a result of the Loan made available under this Agreement.


 


16.5.6                  Without in
any way modifying or affecting the obligations of either of the Borrowers
hereunder, in the event either of the Borrowers shall make any payment or
payments to the Bank under this Agreement in an aggregate amount in excess of
such Borrower’s Percentage (such Borrower hereinafter called the “Funding Borrower” and the other Borrower
hereinafter called the “Other Borrower”),
the Other Borrower shall contribute to the Funding Borrower an amount equal to
the Other Borrower’s Percentage of such payment or payments made by the Funding
Borrower. For the purposes hereof, a Funding Borrower’s or the Other Borrower’s
Percentage shall be determined as of the date on which such payment was made by
reference to the ratio of (a) such Funding Borrower’s or such Other Borrowers’
Adjusted Net Worth as of such date to (b) the aggregate Adjusted Net Worth of
the Borrowers (including the Funding Borrower) as of such date.


 


75

















 


Nothing in this paragraph shall affect each
Borrowers’ several liability to the Bank for the entire amount of the
obligations of the Borrowers under this Agreement (up to the limitations set
forth in the preceding paragraph) or in any other manner impair any right or
remedy of the Bank hereunder. The limitations provided above are intended
solely to preserve the rights of the Bank under this Agreement to the maximum
extent permitted by applicable law and neither of the Borrowers nor any other
person shall have any right hereunder that it would not otherwise have under
applicable law.


 


17                                  Governing law and jurisdiction


 


17.1                           Law


 


This Agreement is governed by, and shall be
construed in accordance with, English law.


 


17.2                           Submission
to jurisdiction


 


Each Borrower agrees, for the benefit of the
Bank, that any legal action or proceedings arising out of or in connection with
this Agreement against the Borrowers or either of them or any of their
respective assets may be brought in the English courts. Each Borrower
irrevocably and unconditionally submits to the jurisdiction of such courts and
irrevocably designates, appoints and empowers Riches Consulting at present of
Old Jarretts Farmhouse, Brantridge Lane, Balcombe, West Sussex RH17 6JR,
England to receive for it and on its behalf, service of process issued out of
the English courts in any such legal action or proceedings. The submission to
such jurisdiction shall not (and shall not be construed so as to) limit the
right of the Bank to take proceedings against the Borrowers or either of them
in the courts of any other competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of proceedings
in any other jurisdiction, whether concurrently or not.


 


The parties further agree that only the Courts
of England and not those of any other State shall have jurisdiction to
determine any claim which the Borrowers or either of them may have against the
Bank arising out of or in connection with this Agreement.


 


17.3                           Contracts
(Rights of Third Parties) Act 1999


 


No term of this Agreement is enforceable under
the provisions of the Contracts (Rights of Third Parties) Act 1999 by a person
who is not a party to this Agreement.


 


IN WITNESS whereof
the parties to this Agreement have caused this Agreement to be duly executed on
the date first above written.


 


76

















 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by

  	
  )

  	
   

  	
   

  
	
  for and on behalf of

  	
  )

  	
  Attorney-in-fact

  
	
  AEGEAN
  MARINE PETROLEUM NETWORK INC.

  	
  )

  	
   

  



 


 


	
   

  	
   

  
	
  Witness

  
	
  Name:

  
	
  Address:

  
	
  Occupation:

  



 


 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by

  	
  )

  	
   

  	
   

  
	
  for and on behalf of

  	
  )

  	
  Attorney-in-fact

  
	
  AEGEAN
  MARINE PETROLEUM S.A.

  	
  )

  	
   

  



 


 


	
   

  	
   

  
	
  Witness

  
	
  Name:

  
	
  Address:

  
	
  Occupation:

  



 


 


	
  EXECUTED as a DEED

  	
  )

  	
   

  
	
  by

  	
  )

  	
   

  	
   

  
	
  for and on behalf of

  	
  )

  	
  Attorney-in-fact

  
	
  THE ROYAL
  BANK OF SCOTLAND PLC

  	
  )

  	
   

  



 


 


	
   

  	
   

  
	
  Witness

  
	
  Name:

  
	
  Address:

  
	
  Occupation:

  



 


77

















 


To:  Aegean Marine Petroleum Network Inc. 

and

Aegean Marine Petroleum SA.

(as Borrowers)


 


Dated
19 October 2007


 


Dear Sirs,


Facility Agreement dated 19 December 2006 (as amended)



1                                         We refer to:


(a)                                 the
facility agreement dated 19 December 2008 as amended by supplemental letters
dated 17 April 2007, 23 May 2007, 29 June 2007 and 21 September 2007 (together,
the “Facility Agreement”) and made between
(1) Aegean Marine Petroleum Network Inc. and Aegean Marine Petroleum S.A. as
joint and several borrowers (therein and hereinafter together referred to as
the “Borrowers” and individually a “Borrower”) and (2) The Royal Bank of Scotland plc as lender
(the “Bank”), whereby the Bank agreed (inter alia) to make available
to the Borrowers on a joint and several basis, upon the terms and conditions
therein contained, a term loan, overdraft and multi-currency revolving
guarantee and letter of credit facility of u to US$183,400,000; and


(b)                                 the
ISDA 1992 Master Agreement dated as of 19 December 2006 and made between (1)
the Borrowers and (2) the Bank.


2                                         Words and
expressions defined in the Facility Agreement shall have the same meanings when
used herein.


3                                         The Borrowers
have requested that the Bank consents to the following changes to the Facility
Agreement, which shall be effective only until 31 December 2007:


(a)                                 the
Guarantee Facility Commitment and the limit of the Guarantee Facility shall be
increased from $150,000,000 to $175,000,000;


(b)                                 the
Overdraft Facility Limit shall be increased from $50,000,000 to $75,000,000,
provided it does not exceed the aggregate of the available and unutilised
portion of the Guarantee Facility at any relevant time;


(c)                                 as
a result of the above arrangements, the total amount of the term loan,
overdraft and guarantee facility made available under the Facility Agreement shall
be increased from $183,400,000 to $208;400,000; and


(d)                                 all
the provisions of the Facility Agreement and the other Security Documents shall
be deemed amended as necessary in order to conform with the above changes and will
be interpreted and construed accordingly.


4                                         The Bank
hereby confirms its consent to the above changes and amendments to the Facility
Agreement on condition that:


(a)                                 the
said changes shall only be effective until 31 December 2007, whereupon the terms of the Facility Agreement (and the relevant
limits of the facilities contained therein) shall be reinstated to their status
prior to the amendments made pursuant to this Letter;


 


78

















 


(b)                                 each
Borrower and each of the other Security Parties shall have confirmed their
agreement and consent to the arrangements ,of this Letter by
counter-signing this Letter by signatories acceptable to the Bank in all
respects; and


(c)                                 there
shall have been delivered to the Bank, such corporate authorisations or other
evidence of the authority of the Borrowers, in relation to the execution of
this Letter, in a form acceptable to the Bank in all respects,


and, with effect on and from the date when the Bank advises the Borrowers
that it is satisfied that the conditions referred to in paragraphs 4(b) and
4(c) above have been met, the Facility Agreement shell be hereby amended (and
deemed amended) in accordance with the changes referred to in paragraph 3 above but subject to
the condition of paragraph (a) above.


5                                         In consideration
of the Bank’s agreement contained in this Letter, the Borrowers hereby agree to
pay to the Bank on the date of this Letter, a flat fee of US$30,000, which
shall be non-refundable.


6                                         This letter is
governed by, and shall be construed in accordance with, English law.


	
  Yours
  faithfully,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attorney-in-fact

  for and on behalf of

  THE ROYAL BANK OF SCOTLAND PLC

  	
   

  
	
   

  	
   

  
	
  Date: 19
  October 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  We hereby
  acknowledge and agree to the foregoing.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attorney-in-fact

  for and on behalf of

  AEGEAN MARINE PETROLEUM NETWORK INC.

  as Borrower

  	
   

  
	
   

  	
   

  
	
  Date: 19 October 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attorney-in-fact

  for and on behalf of

  AEGEAN MARINE PETROLEUM S.A.

  as Borrower

  	
   

  
	
   

  	
   

  
	
  Date: 19 October 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


79

















 


	
  We hereby
  acknowledge and agree to the foregoing.

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Attorney-in-fact

  
	
  for and on behalf of

  
	
  AEGEAN BUNKERING SERVICES INC.

  
	
  as Manager and Corporate Guarantor

  
	
   

  
	
  Date: 19 October 2007

  
	
   

  
	
  We hereby acknowledge and agree to the foregoing.

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Attorney-in-fact

  
	
  for and on behalf of each of the following companies and corporations

  
	
  AMORGOS MARITIME INC.

  
	
  KIMOLOS MARITIME INC.

  
	
  MILOS SHIPPING (PTE.) LTD.

  
	
  MYKONOS MARITIME INC.

  
	
  SYROS MARITIME INC.

  
	
  EVIAN ENTERPRISES CO.

  
	
  CARMEL INVESTMENT CORP.

  
	
  CLYDE SHIPPING CORP.

  
	
  BALTIC NAVIGATION COMPANY

  
	
  CARNABY NAVIGATION INC.

  
	
  MARE NAZION S.A.

  
	
  AEGEAN TANKING S.A.

  
	
  PONTOS NAVIGATION INC.

  
	
  AEGEAN TIFFANY S IPPING PTE. LTD,

  
	
  AEGEAN X MARITIME INC.

  
	
  AEGEAN BREEZE SHIPPING PTE. LTD.

  
	
  OURANOS TANKING S.A.

  
	
  AEGEAN VII SHIPPING LTD.

  
	
  VENUS HOLDING COMPANY

  
	
  BALDWIN MANAGEMENT CO.

  
	
  SEA BREEZER MARINE S.A.

  
	
  TIFFANY MARINE S.A.

  
	
  as Owners

  
	
   

  
	
  Date:   October 2007

  



 


 


 


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