Republic of the Marshall Islands
|
4412
|
N.A.
|
(State or other jurisdiction of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification No.) |
Gary J. Wolfe, Esq.
Seward & Kissel LLP One Battery Park Plaza New York, New York 10004 (212) 574-1200 (telephone number) (212) 480- 8421 (facsimile number) |
Barry I. Grossman, Esq.
Lawrence A. Rosenbloom, Esq. Joshua N. Englard, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105 (212) 370-1300 (telephone number) (212) 370-7889 (facsimile number) |
Title of Each Class of Securities to be Registered
|
Proposed Maximum
Aggregate Offering Price (1)(2) |
Amount of
Registration Fee |
||||
Common shares, $0.0001 par value per share
|
|
|
|
|||
Total
|
$23,000,000
|
|
$2,863.50
|
(1) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended.
|
(2) |
Includes the offering price of common shares that may be sold pursuant to the underwriters' option to purchase additional common shares.
|
Per Common Share
|
Total
|
|||||||
Public offering price
|
$
|
|
$
|
|
||||
Underwriting discount and commissions
|
$
|
|
$
|
|
||||
Proceeds to the Company, before expenses
|
$
|
|
$
|
|
ABOUT THIS PROSPECTUS
|
ii
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
ii
|
ENFORCEABILITY OF CIVIL LIABILITIES
|
iv
|
PROSPECTUS SUMMARY
|
1
|
THE OFFERING
|
7
|
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
|
8
|
RISK FACTORS
|
14
|
USE OF PROCEEDS
|
36
|
DIVIDEND POLICY
|
37
|
PRICE RANGE OF OUR COMMON SHARES
|
38
|
CAPITALIZATION
|
39
|
DILUTION
|
40
|
BUSINESS
|
41
|
THE INTERNATIONAL DRYBULK INDUSTRY
|
60
|
MANAGEMENT
|
88
|
EXECUTIVE COMPENSATION
|
91
|
SHARE OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
92
|
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
|
93
|
DESCRIPTION OF CAPITAL STOCK
|
96
|
CERTAIN MARSHALL ISLANDS COMPANY CONSIDERATIONS
|
100
|
TAX CONSIDERATIONS
|
103
|
UNDERWRITING
|
112
|
EXPENSES RELATING TO THIS OFFERING
|
117
|
LEGAL MATTERS
|
117
|
EXPERTS
|
117
|
WHERE YOU CAN FIND MORE INFORMATION
|
117
|
DOCUMENTS INCORPORATED BY REFERENCE
|
118
|
· |
changes in shipping industry trends, including charter rates, vessel values and factors affecting vessel supply and demand;
|
· |
changes in seaborne and other transportation patterns;
|
· |
changes in the supply of or demand for drybulk commodities, including drybulk commodities carried by sea, generally or in particular regions;
|
· |
changes in the number of newbuildings under construction in the drybulk shipping industry;
|
· |
changes in the useful lives and the value of our vessels and the related impact on our compliance with loan covenants;
|
· |
the aging of our fleet and increases in operating costs;
|
· |
changes in our ability to complete future, pending or recent acquisitions or dispositions;
|
· |
our ability to achieve successful utilization of our expanded fleet;
|
· |
changes to our financial condition and liquidity, including our ability to pay amounts that we owe and obtain additional financing to fund capital expenditures, acquisitions and other general corporate activities;
|
· |
risks related to our business strategy, areas of possible expansion or expected capital spending or operating expenses;
|
· |
changes in the availability of crew, number of off-hire days, classification survey requirements and insurance costs for the vessels in our fleet;
|
· |
changes in our ability to leverage the relationships and reputation in the drybulk shipping industry of V.Ships Limited, or V.Ships, and Fidelity Marine Inc., or Fidelity;
|
· |
changes in our relationships with our contract counterparties, including the failure of any of our contract counterparties to comply with their agreements with us;
|
· |
loss of our customers, charters or vessels;
|
· |
damage to our vessels;
|
· |
potential liability from future litigation and incidents involving our vessels;
|
· |
our future operating or financial results;
|
· |
our ability to continue as a going concern;
|
· |
acts of terrorism and other hostilities;
|
· |
changes in global and regional economic and political conditions;
|
· |
changes in governmental rules and regulations or actions taken by regulatory authorities, particularly with respect to the drybulk shipping industry; and
|
· |
other factors listed from time to time in registration statements, reports or other materials that we have filed with or furnished to the U.S. Securities and Exchange Commission, or the Commission, including our most recent annual report on Form 20-F, which is incorporated by reference into this prospectus.
|
Vessel Name
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
|||||
Championship
|
2011
|
179,238
|
LIB
|
Sungdong
|
Spot
|
|||||
Partnership
|
2012
|
179,213
|
MI
|
Hyundai
|
Time Charter
(1)
|
|||||
Knightship
|
2010
|
178,978
|
LIB
|
Hyundai
|
Spot
|
|||||
Lordship
|
2010
|
178,838
|
LIB
|
Hyundai
|
Time Charter
(2)
|
|||||
Gloriuship
|
2004
|
171,314
|
MI
|
Hyundai
|
Spot
|
|||||
Leadership
|
2001
|
171,199
|
BA
|
Koyo - Imabari
|
Spot
|
|||||
Geniuship
|
2010
|
170,057
|
MI
|
Sungdong
|
Spot
|
|||||
Premiership
|
2010
|
170,024
|
IoM
|
Sungdong
|
Spot
|
|||||
Squireship
|
|
2010
|
|
170,018
|
|
LIB
|
|
Sungdong
|
Spot
|
|
Guardianship
|
|
2011
|
|
56,884
|
|
MI
|
|
CSC Jinling
|
Spot
|
|
Gladiatorship
|
|
2010
|
|
56,819
|
|
BA
|
|
CSC Jinling
|
Spot
|
|
Average Age/Total dwt:
|
|
8.5 years
|
|
1,682,582
|
(1) |
This vessel is being chartered by Uniper Global Commodities SE and was delivered to the charterer on June 13, 2017 for a period of employment of about 12 months to about 18 months at a gross daily rate of $16,200.
|
(2) |
This vessel is being chartered by Oldendorff Carriers GmbH & Co. KG and was delivered to the charterer on June 28, 2017, in direct continuation of the vessel's previous time charter, for a period of about 18 months to about 22 months. The net daily charter hire is calculated at an index linked rate based on the five time charter routes rate of the Baltic Capesize Index. In addition, the time charter provides us an option for any period of time during the hire to be converted into a fixed rate time charter, between three months and 12 months, with a rate corresponding to the prevailing value of the respective Capesize forward freight agreement.
|
· |
Modern, High Quality Fleet.
Our Fleet has an average age of 8.5 years as of the date of this prospectus, compared to world-wide Supramax and Capesize drybulk market industry average ages of 9.2 and 8.7 years, respectively, as of that date. We believe that owning a young, modern and well-maintained fleet provides us with a competitive advantage in securing favorable time and spot charters. All of our vessels have been built in high quality shipyards that we view as having a longstanding reputation for building such vessels. We expect that the combination of these factors will provide us with a competitive advantage in securing favorable employment for our vessels, although it is possible that the daily rates we receive on future time and spot charters may be lower depending on market fluctuations.
|
· |
Focus on Capesize Vessels
. Our fleet primarily consists of Capesize vessels. We believe that the Capesize sector will benefit significantly from the increase in demand for commodities such as iron ore and coal. According to Karatzas Marine Advisors & Co. seaborne transportation has increased by 1.7% in 2016 and is expected to increase by 4.5% in 2017. In addition, the newbuilding orderbook has seen a significant reduction for Capesize vessels currently standing at approximately 3% of the current fleet, lowest in history, compared to 35.4% that has been the average ratio of newbuilding orderbook of the fleet for the last 10 years.
|
· |
Experienced Management
. Our Company's leadership has considerable depth of shipping industry expertise. Mr. Tsantanis, our Chairman, Chief Executive Officer and interim Chief Financial Officer, brings more than 19 years of experience in shipping and finance and has held senior management positions in prominent shipping companies.
|
· |
Access to Attractive Chartering Opportunities
. Fidelity, our commercial manager, has established strong global relationships with charterers and brokers. We believe Fidelity's relationships with these counterparties should provide us with access to attractive chartering opportunities.
|
· |
Expanding Our Fleet Through Accretive Acquisitions
. We intend to acquire drybulk carriers with fuel-efficient specifications and carrying capacities of greater than 170,000 dwt through timely and selective acquisitions, although we may also consider other classes of drybulk carriers as opportunities warrant. We currently view the Capesize vessel class as providing attractive return characteristics given the existing vessel price levels. A key element to our acquisition strategy will be to acquire high-quality vessels at attractive prices. When evaluating acquisitions, we will consider and analyze, among other things, our expectation of fundamental developments in the drybulk shipping industry sector, the level of liquidity in the resale and charter market, the cash flow expected to be earned by a vessel in relation to its value, its condition and technical specifications with particular regard to fuel consumption, expected remaining useful life, the credit quality of the charterer and duration and terms of charter contracts for vessels acquired with charters attached, as well as the overall diversification of our fleet and customers. We believe that these circumstances combined with our management's knowledge of the shipping industry present an opportunity for us to grow our fleet at favorable prices.
|
· |
Well Positioned to Capitalize on an Improving Rate Environment via Spot Market Exposure.
We believe our current eleven-vessel fleet is optimized to capture increasing vessel revenues as a result of an upward trend in spot rates. Currently nine of our eleven vessels are on the spot market and one vessel is employed under an index-linked charter providing us the ability to capture upward movements in rates. The average of the four time charter routes for the Baltic Capesize Index, or the BCI TCE, a daily average of charter rates for key Capesize routes published by the Baltic Exchange Limited, which has long been viewed as the main benchmark to monitor the movements of the Capesize vessel charter market, has recently increased significiantly by 4,303% from the record low level of $485 per day on March 17, 2016 to $21,356 per day on October 19, 2017. The average BCI TCE of the last ten years has been $29,863 per day. As rates increase we expect to utilize a more balanced portfolio approach for our commercial vessel management. We believe employing a chartering strategy to capture upside opportunities in the spot market with a mixture of fixed-rate time charters as the charter market improves will enable us to reduce downside risks and provide more stability in cash flows. Because the spot market is volatile, there can be no assurance that the recent increases in the drybulk charter market will continue.
|
· |
Operating a Modern, High-Quality Fleet
. Our Fleet had an average age of 8.5 years as of the date of this prospectus, compared to world-wide Supramax and Capesize drybulk market industry average ages of 9.2 and 8.7 years, respectively, as of that date. We believe that owning a young, well-maintained fleet provides us with a competitive advantage in securing favorable time and spot charters. All of our vessels have been built in high quality shipyards that we view as having a longstanding reputation for building quality vessels. We expect that the combination of these factors will provide us with a competitive advantage in securing favorable employment for our vessels.
|
· |
the low drybulk freight market in the years 2014 – 2016 and limited availability of shipping finance, among other factors, have resulted in low drybulk vessel asset pricing, relative to average prices, over the last five years;
|
· |
The BCI TCE has recently increased significantly by 4,303% from the record low level of $485 per day on March 17, 2016 to $21,356 per day on October 19, 2017. The average BCI TCE of the last ten years has been $29,863 per day. Because the spot market is volatile, there can be no assurance that the recent increases in the drybulk charter market will continue;
|
· |
the recovery of global economic activity and industrial production, which continues to rely heavily on raw materials and commodity consumption;
|
· |
the increased aggregate demand for seaborne transport for commodities and raw materials expected over the next decade; economic growth has been reviving in 2017 and raw materials remain the primary driver for world economies; coal is expected to remain one of the main inputs for generating electricity while iron ore will be the necessary source of raw material for an active steel industry; expanded mining capacity by the world's largest mining companies supports these trends;
|
· |
the regulations enacted by the International Maritime Organization, mandating higher maintenance standards of vessels, installation of ballast water management systems, and gradually lower emissions will require material capital investments that will render older drybulk vessels uneconomical for retrofitting and will expedite their demolition; and
|
· |
charterers' concerns about environmental and safety standards shifting their preference toward modern vessels that are owned by reputable and financially stable ship owners at the expense of weaker ship owners.
|
Common shares presently outstanding
|
36,979,346 common shares(1)
|
|
Securities offered by us
|
common shares
|
|
Common shares to be outstanding immediately after this offering
|
common shares
|
|
Use of proceeds
|
We estimate that we will receive net proceeds of approximately $ , after deducting underwriting discounts and commissions and estimated expenses payable by us.
We intend to use the net proceeds of this offering for the acquisition of vessels in accordance with our growth strategy and for general corporate purposes. See "Use of Proceeds."
|
|
Risk factors
|
Investing in our securities involves a high degree of risk. See "Risk Factors" below on page 14 and in our Annual Report on Form 20-F for the year ended December 31, 2016, which is incorporated by reference herein, to read about the risks you should consider before investing in our common shares.
|
|
Listing
|
Our common shares and class A warrants are listed on the Nasdaq Capital Market under the symbols "SHIP" and "SHIPW", respectively.
|
|
Lock-Up Agreements
|
Subject to certain exceptions, we, all of our executive officers and directors, and certain affiliates have entered into lock-up agreements with the underwriters. Under these agreements, we and each of these persons may not, without the prior written approval of the Representative offer, sell, contract to sell or otherwise dispose of or hedge common shares or securities convertible into or exchangeable for common shares. These restrictions will be in effect for a period of 120 days after the date of the closing of this offering.
|
Year Ended December 31,
|
||||||||||||||||||||
2016
|
2015
|
2014
|
2013
|
2012
|
||||||||||||||||
Statement of Income Data:
|
||||||||||||||||||||
Vessel revenue, net
|
$
|
34,662
|
$
|
11,223
|
$
|
2,010
|
$
|
23,079
|
$
|
55,616
|
||||||||||
Voyage expenses
|
(21,008
|
)
|
(7,496
|
)
|
(1,274
|
)
|
(8,035
|
)
|
(13,587
|
)
|
||||||||||
Vessel operating expenses
|
(14,251
|
)
|
(5,639
|
)
|
(1,006
|
)
|
(11,086
|
)
|
(26,983
|
)
|
||||||||||
Voyage expenses - related party
|
-
|
-
|
(24
|
)
|
(313
|
)
|
(532
|
)
|
||||||||||||
Management fees - related party
|
-
|
-
|
(122
|
)
|
(743
|
)
|
(1,625
|
)
|
||||||||||||
Management fees
|
(895
|
)
|
(336
|
)
|
-
|
(194
|
)
|
(588
|
)
|
|||||||||||
General and administration expenses
|
(4,134
|
)
|
(2,804
|
)
|
(2,987
|
)
|
(3,966
|
)
|
(6,337
|
)
|
||||||||||
General and administration expenses - related party
|
-
|
(70
|
)
|
(309
|
)
|
(412
|
)
|
(402
|
)
|
|||||||||||
Loss on bad debts
|
-
|
(30
|
)
|
(38
|
)
|
-
|
(327
|
)
|
||||||||||||
Amortization of deferred dry-docking costs
|
(556
|
)
|
(38
|
)
|
-
|
(232
|
)
|
(3,648
|
)
|
|||||||||||
Depreciation
|
(8,531
|
)
|
(1,865
|
)
|
(3
|
)
|
(982
|
)
|
(15,606
|
)
|
||||||||||
Loss on sale of vessels
|
-
|
-
|
-
|
-
|
(15,590
|
)
|
||||||||||||||
Impairment loss for goodwill
|
-
|
-
|
-
|
-
|
(4,365
|
)
|
||||||||||||||
Impairment loss for vessels and deferred charges
|
-
|
-
|
-
|
(3,564
|
)
|
(147,143
|
)
|
|||||||||||||
Gain on disposal of subsidiaries
|
-
|
-
|
-
|
25,719
|
-
|
|||||||||||||||
Gain on restructuring
|
-
|
-
|
85,563
|
-
|
-
|
|||||||||||||||
Operating (loss) / income
|
(14,713
|
)
|
(7,055
|
)
|
81,810
|
19,271
|
(181,117
|
)
|
||||||||||||
Interest and finance costs
|
(7,235
|
)
|
(1,460
|
)
|
(1,463
|
)
|
(8,389
|
)
|
(12,480
|
)
|
||||||||||
Interest and finance costs - related party
|
(2,616
|
)
|
(399
|
)
|
-
|
-
|
-
|
|||||||||||||
Interest income
|
20
|
-
|
14
|
13
|
59
|
|||||||||||||||
Loss on interest rate swaps
|
-
|
-
|
-
|
(8
|
)
|
(189
|
)
|
|||||||||||||
Foreign currency exchange (losses) gains, net
|
(45
|
)
|
(42
|
)
|
(13
|
)
|
19
|
(43
|
)
|
|||||||||||
Total other expenses, net
|
(9,876
|
)
|
(1,901
|
)
|
(1,462
|
)
|
(8,365
|
)
|
(12,653
|
)
|
||||||||||
Net (loss) / income before taxes
|
(24,589
|
)
|
(8,956
|
)
|
80,348
|
10,906
|
(193,770
|
)
|
||||||||||||
Income tax (expense) / benefit
|
(34
|
)
|
-
|
-
|
1
|
2
|
||||||||||||||
Net (loss) / income
|
$
|
(24,623
|
)
|
$
|
(8,956
|
)
|
$
|
80,348
|
$
|
10,907
|
$
|
(193,768
|
)
|
|||||||
Net (loss) / income per common share
|
||||||||||||||||||||
Basic and diluted
|
$
|
(1.20
|
)
|
$
|
(0.83
|
)
|
$
|
30.06
|
$
|
4.56
|
$
|
(83.69
|
)
|
|||||||
Weighted average common shares outstanding
|
||||||||||||||||||||
Basic
|
20,553,007
|
10,773,404
|
2,672,945
|
2,391,628
|
2,315,315
|
|||||||||||||||
Diluted
|
20,553,007
|
10,773,404
|
2,672,950
|
2,391,885
|
2,315,315
|
|||||||||||||||
As of December 31,
|
||||||||||||||||||||
2016
|
2015
|
2014
|
2013
|
2012
|
||||||||||||||||
Balance Sheet Data:
|
||||||||||||||||||||
Cash and restricted cash
|
$
|
15,908
|
$
|
3,354
|
$
|
2,873
|
$
|
3,075
|
$
|
6,298
|
||||||||||
Total current assets
|
22,329
|
8,278
|
3,207
|
66,350
|
52,086
|
|||||||||||||||
Vessels, net
|
232,109
|
199,840
|
-
|
-
|
68,511
|
|||||||||||||||
Total assets
|
257,534
|
209,352
|
3,268
|
66,350
|
120,960
|
|||||||||||||||
Total current liabilities, including current portion of long-term debt
|
21,230
|
9,250
|
592
|
157,045
|
222,577
|
|||||||||||||||
Long-term debt, net of current portion
|
198,497
|
176,787
|
-
|
-
|
-
|
|||||||||||||||
Due to related parties, noncurrent
|
5,878
|
-
|
-
|
-
|
-
|
|||||||||||||||
Long-term portion of convertible promissory notes
|
1,097
|
31
|
-
|
-
|
-
|
|||||||||||||||
Total equity / (deficit)
|
$ |
30,832
|
$ |
23,284
|
$ |
2,676
|
$ |
(90,695
|
)
|
$ |
(101,617
|
)
|
Year Ended December 31,
|
||||||||||||||||||||
2016
|
2015
|
2014
|
2013
|
2012
|
||||||||||||||||
Cash Flow Data:
|
||||||||||||||||||||
Net cash (used in) provided by operating activities
|
$
|
(15,339
|
)
|
$
|
(4,737
|
)
|
$
|
(14,858
|
)
|
$
|
1,030
|
$
|
2,418
|
|||||||
Net cash (used in) provided by investing activities
|
(40,779
|
)
|
(201,684
|
)
|
105,895
|
993
|
55,402
|
|||||||||||||
Net cash provided by (used in) financing activities
|
65,672
|
206,852
|
(91,239
|
)
|
(3,246
|
)
|
(71,256
|
)
|
||||||||||||
Change in cash and cash equivalents
|
9,554
|
431
|
(202
|
)
|
(1,223
|
)
|
(13,436
|
)
|
Six-month period ended
June 30,
|
||||||||
(Amounts in thousands of U.S. dollars, except for share and per share data.)
|
2017
|
2016
|
||||||
Statement of Income Data:
|
||||||||
Vessel revenue, net
|
31,694
|
15,165
|
||||||
Voyage expenses
|
(16,629
|
)
|
(9,505
|
)
|
||||
Vessel operating expenses
|
(8,796
|
)
|
(6,698
|
)
|
||||
Management fees
|
(488
|
)
|
(454
|
)
|
||||
General and administration expenses
|
(2,269
|
)
|
(1,540
|
)
|
||||
Amortization of deferred dry-docking costs
|
(430
|
)
|
(240
|
)
|
||||
Depreciation
|
(4,952
|
)
|
(4,196
|
)
|
||||
Operating loss
|
(1,870
|
)
|
(7,468
|
)
|
||||
Other expenses, net:
|
||||||||
Interest and finance costs
|
(5,801
|
)
|
(3,442
|
)
|
||||
Interest and finance costs - related party
|
(1,900
|
)
|
(937
|
)
|
||||
Other, net
|
(19
|
)
|
(12
|
)
|
||||
Total other expenses, net
|
(7,720
|
)
|
(4,391
|
)
|
||||
Net loss
|
(9,590
|
)
|
(11,859
|
)
|
||||
Net loss per common share
|
||||||||
Basic and diluted
|
(0.27
|
)
|
(0.61
|
)
|
||||
Weighted average common shares outstanding
|
||||||||
Basic and diluted
|
35,217,339
|
19,370,412
|
||||||
Dividends declared per share
|
-
|
-
|
Six-month period ended
June 30,
|
||||||||
2017
|
2016
|
|||||||
Fleet Data:
|
||||||||
Ownership days(1)
|
1,840
|
1,456
|
||||||
Available days(2)
|
1,827
|
1,354
|
||||||
Operating days(3)
|
1,530
|
1,208
|
||||||
Fleet utilization(4)
|
83.2
|
%
|
83.0
|
%
|
||||
Fleet utilization excluding drydocking & lay-up off hire days(5)
|
83.7
|
%
|
89.2
|
%
|
||||
TCE rate(6)
|
$
|
9,846
|
$
|
4,685
|
||||
Daily vessel operating expenses(7)
|
$
|
4,605
|
$
|
4,600
|
(1) |
Ownership days are the total number of calendar days in a period during which we owned each vessel in our fleet. Ownership days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses recorded during a period.
|
(2) |
Available days are the number of ownership days less the aggregate number of days that our vessels are off-hire due to major repairs, drydockings, lay-up or special or intermediate surveys. The shipping industry uses available days to measure the
aggregate
number of days in a period during which vessels should be capable of generating revenues. During the six months ended June 30, 2017, we incurred 13 off-hire days for one vessel drydocking.
|
(3) |
Operating days are the number of available days in a period less the aggregate number of days that our vessels are off-hire for any reason, including off-hire days between successive voyages, as well as other unforeseen circumstances. The shipping industry uses operating days to measure the aggregate number of days in a period during which the vessels actually generate revenues. In the quarter ended June 30, 2017, we incurred 112 off-hire days between voyages. In the six months ended June 30, 2017, we incurred 295 off-hire days between voyages and 2 off-hire days due to other unforeseen circumstances.
|
(4) |
Fleet utilization is the percentage of time that our vessels are generating revenue, and is determined by dividing operating days by ownership days for the relevant period.
|
(5) |
Fleet utilization excluding drydocking and lay-up off-hire days is calculated by dividing the number of our fleet's operating days during a period by the number of available days during that period. The shipping industry uses fleet utilization excluding drydocking and lay-up off-hire days to measure a company's efficiency in finding suitable employment for its vessels and excluding the amount of days that its vessels are off-hire for reasons such as scheduled repairs, vessel upgrades, drydockings, special or intermediate surveys and lay-ups.
|
(6) |
Time Charter Equivalent (TCE) rate is defined as our net revenue less voyage expenses during a period divided by the number of our operating days during the period. Voyage expenses include port charges, bunker expenses, canal charges and other commissions. We include the TCE rate, a non-GAAP measure, as we believe it provides additional meaningful information in conjunction with net revenues from vessels, the most directly comparable US GAAP measure, and because it assists our management in making decisions regarding the deployment and use of our vessels and in evaluating their financial performance. Our calculation of TCE rate may not be comparable to that reported by other companies. The following table reconciles the Company's net revenues from vessels to the TCE rate.
|
Six months ended
June 30,
|
||||||||
(In thousands of US Dollars, except operating days and TCE rate)
|
2017
|
2016
|
||||||
Net revenues from vessels
|
$
|
31,694
|
$
|
15,165
|
||||
Voyage expenses
|
(16,629
|
)
|
(9,505
|
)
|
||||
Net operating revenues
|
15,065
|
5,660
|
||||||
Operating days
|
1,530
|
1,208
|
||||||
Daily time charter equivalent rate
|
$
|
9,846
|
$
|
4,685
|
(7) |
Vessel operating expenses include crew costs, provisions, deck and engine stores, lubricants, insurance, maintenance and repairs. Daily Vessel Operating Expenses are calculated by dividing vessel operating expenses by ownership days for the relevant time periods. The following table reconciles our vessel operating expenses to Daily Vessel Operating Expenses.
|
(In thousands of US Dollars, except ownership days and Daily Vessel Operating Expenses)
|
Six months ended
June 30,
|
|||||||
2017
|
2016
|
|||||||
Vessel operating expenses
|
$
|
8,796
|
$
|
6,698
|
||||
Less: Pre-delivery expenses
|
322
|
-
|
||||||
Vessel operating expenses before pre-delivery expenses
|
8,474
|
6,698
|
||||||
Ownership days
|
1,840
|
1,456
|
||||||
Daily vessel operating expenses
|
$
|
4,605
|
$
|
4,600
|
Six months ended
June 30,
|
||||||||
2017
|
2016
|
|||||||
EBITDA reconciliation:
|
||||||||
Net loss
|
$
|
(9,590
|
)
|
$
|
(11,859
|
)
|
||
Add: Net interest expense
|
7,693
|
4,379
|
||||||
Add: Depreciation and amortization
|
5,382
|
4,436
|
||||||
EBITDA(1)
|
$
|
3,485
|
$
|
(3,044
|
)
|
(1) |
Earnings before interest, taxes, depreciation and amortization ("EBITDA") represents the sum of net income/(loss), interest and finance costs, interest income, depreciation and amortization and, if any, income taxes during a period. EBITDA is not a recognized measurement under U.S. GAAP.
|
As of June 30, 2017
|
||||
Balance Sheet Data:
|
||||
Cash and restricted cash
|
$
|
9,197
|
||
Total current assets
|
17,774
|
|||
Vessels, net
|
259,979
|
|||
Total assets
|
280,243
|
|||
Total current liabilities, including current portion of long-term debt
|
33,299
|
|||
Long-term debt, net of current portion
|
203,638
|
|||
Due to related parties, noncurrent
|
17,342
|
|||
Long-term portion of convertible promissory notes
|
1,645
|
|||
Total equity
|
24,319
|
Six months ended
June 30,
|
||||||||
2017
|
2016
|
|||||||
Cash Flow Data:
|
||||||||
Net cash used in operating activities
|
(4,747
|
)
|
(9,195
|
)
|
||||
Net cash used in investing activities
|
(32,729
|
)
|
-
|
|||||
Net cash provided by financing activities
|
30,765
|
8,950
|
||||||
Change in cash and cash equivalents and restricted cash
|
(6,711
|
)
|
(245
|
)
|
· |
prevailing level of charter rates;
|
· |
general economic and market conditions affecting the shipping industry;
|
· |
types and sizes of vessels;
|
· |
supply and demand for vessels;
|
· |
other modes of transportation;
|
· |
cost of newbuildings;
|
· |
governmental and other regulations; and
|
· |
technological advances.
|
· |
decrease in available financing for vessels;
|
· |
no active secondhand market for the sale of vessels;
|
· |
charterers seeking to renegotiate the rates for existing time charters;
|
· |
widespread loan covenant defaults in the drybulk shipping industry due to the substantial decrease in vessel values; and
|
· |
declaration of bankruptcy by some operators, charterers and vessel owners.
|
· |
number of new vessel deliveries;
|
· |
scrapping rate of older vessels;
|
· |
vessel casualties;
|
· |
price of steel;
|
· |
number of vessels that are out of service;
|
· |
changes in environmental and other regulations that may limit the useful life of vessels; and
|
· |
port or canal congestion.
|
· |
crew strikes and/or boycotts;
|
· |
marine disaster;
|
· |
piracy;
|
· |
environmental accidents;
|
· |
cargo and property losses or damage; and
|
· |
business interruptions caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather conditions.
|
· |
generate excess cash flow so that we can invest without jeopardizing our ability to cover current and foreseeable working capital needs, including debt service;
|
· |
raise equity and obtain required financing for our existing and new operations;
|
· |
locate and acquire suitable vessels;
|
· |
identify and consummate acquisitions or joint ventures;
|
· |
integrate any acquired businesses or vessels successfully with our existing operations;
|
· |
hire, train and retain qualified personnel and crew to manage and operate our growing business and fleet;
|
· |
enhance our customer base; and
|
· |
manage our expansion.
|
· |
our ability to obtain additional financing, if necessary, for working capital, capital expenditures, acquisitions or other purposes may be impaired or such financing may be unavailable on favorable terms;
|
· |
we may need to use a substantial portion of our cash from operations to make principal and interest payments on our debt, reducing the funds that would otherwise be available for operations, future business opportunities and any future dividends to our shareholders;
|
· |
our debt level could make us more vulnerable than our competitors with less debt to competitive pressures or a downturn in our business or the economy generally; and
|
· |
our debt level may limit our flexibility in responding to changing business and economic conditions.
|
· |
renew existing charters upon their expiration;
|
· |
obtain new charters;
|
· |
obtain financing on commercially acceptable terms;
|
· |
maintain satisfactory relationships with our charterers and suppliers; and
|
· |
successfully execute our business strategies.
|
· |
quarterly variations in our results of operations;
|
· |
changes in market valuations of similar companies and stock market price and volume fluctuations generally;
|
· |
changes in earnings estimates or the publication of research reports by analysts;
|
· |
speculation in the press or investment community about our business or the shipping industry generally;
|
· |
strategic actions by us or our competitors such as acquisitions or restructurings;
|
· |
the thin trading market for our common shares, which makes it somewhat illiquid;
|
· |
regulatory developments;
|
· |
additions or departures of key personnel;
|
· |
general market conditions; and
|
· |
domestic and international economic, market and currency factors unrelated to our performance.
|
· |
authorize our board of directors to issue "blank check" preferred stock without shareholder approval;
|
· |
provide for a classified board of directors with staggered, three-year terms;
|
· |
require a super-majority vote in order to amend the provisions regarding our classified board of directors with staggered, three-year terms;
|
· |
permit the removal of any director from office at any time, with or without cause, at the request of the shareholder group entitled to designate such director; and
|
· |
prevent our board of directors from dissolving the shipping committee or altering the duties or composition of the shipping committee without an affirmative vote of not less than 80% of the board of directors.
|
· |
our existing shareholders' proportionate ownership interest in us would decrease;
|
· |
the proportionate amount of cash available for dividends payable on our common shares could decrease;
|
· |
the relative voting strength of each previously outstanding common share could be diminished; and
|
· |
the market price of our common shares could decline.
|
High
|
Low
|
|||||||
For the Year ended December 31:
|
||||||||
2016
|
$
|
7.20
|
$
|
1.15
|
||||
2015
|
6.75
|
2.75
|
||||||
2014
|
9.95
|
4.13
|
||||||
2013
|
12.30
|
4.00
|
||||||
2012
|
21.15
|
5.20
|
||||||
For the Quarter Ended:
|
||||||||
September 30, 2017
|
$
|
1.23
|
$
|
0.71
|
||||
June 30, 2017
|
1.20
|
0.61
|
||||||
March 31, 2017
|
1.25
|
0.76
|
||||||
December 31, 2016
|
7.20
|
1.15
|
||||||
September 30, 2016
|
6.20
|
2.06
|
||||||
June 30, 2016
|
3.01
|
2.10
|
||||||
March 31, 2016
|
5.54
|
1.58
|
||||||
December 31, 2015
|
4.35
|
3.00
|
||||||
September 30, 2015
|
6.75
|
3.02
|
||||||
June 30, 2015
|
4.10
|
2.75
|
||||||
March 31, 2015
|
4.50
|
3.25
|
||||||
For the Month:
|
||||||||
October 2017 (up to October 19, 2017)
|
$
|
1.25
|
$
|
1.12
|
||||
September 2017
|
1.23
|
1.09
|
||||||
August 2017
|
1.13
|
0.71
|
||||||
July 2017
|
1.07
|
0.72
|
||||||
June 2017
|
1.20
|
0.61
|
||||||
May 2017
|
0.78
|
0.62
|
||||||
April 2017
|
1.10
|
0.81
|
· |
on an actual basis;
|
· |
on an as adjusted basis, to give effect to (a)
an installment repayment of $0.58 million on August 28, 2017 under our Amsterdam Trade Bank N.V. loan facility
, (b)
an installment repayment of $0.25 million on September 18, 2017 under our March 2015 Alpha Bank A.E. loan facility, (c)
a $16.5 million drawdown on September 27, 2017 under our Amsterdam Trade Bank N.V. loan facility to partly fund the settlement of the Natixis settlement agreement, (d) $13.75 million under
a new convertible promissory note issued to Jelco on September 27, 2017,
to partly fund the settlement of the Natixis settlement agreement and an installment repayment under our May 24, 2017
loan agreement with Jelco (
$10.39 million of the new note will be recorded in total shareholders' equity and $3.36 million in total indebtedness), (e)
an installment repayment of $4.75 million on September 27, 2017 under our May 24, 2017
loan agreement with Jelco
, (f) an installment repayment of $1.05 million on September 29, 2017 under our
HSH Nordbank AG
loan facility,
(g)
$35.41 million settlement of the Natixis loan facility on September 29, 2017, (h) $11.41 million gain and equity accretion from the Natixis loan facility settlement on September 29, 2017 and
(i)
an installment repayment of $1.6 million on October 2, 2017 under our
UniCredit Bank AG
loan facility
; and
|
· |
on an as further adjusted basis to give effect to the sale of common shares in this offering.
|
(All figures in thousands of U.S. dollars, except for share amounts)
|
Actual
|
As Adjusted
(unaudited) |
As Further Adjusted
(unaudited) |
|||||||||
Debt:
|
||||||||||||
Secured long-term debt and due to related parties, net of deferred finance costs
|
$
|
242,704
|
$
|
215,611
|
$
|
215,611
|
||||||
Unsecured convertible promissory notes
|
2,045
|
5,406
|
5,406
|
|||||||||
Total Debt
|
$
|
244,749
|
$
|
221,017
|
$
|
221,017
|
||||||
Shareholders' equity:
|
||||||||||||
Preferred stock, $0.0001 par value; 25,000,000 shares authorized; none issued
|
-
|
-
|
-
|
|||||||||
Common stock, $0.0001 par value; 500,000,000 authorized shares as at June 30, 2017; 36,979,346 shares issued and outstanding as at June 30, 2017 and as adjusted
|
3
|
3
|
||||||||||
Additional paid-in capital (excluding shareholder's convertible notes)
|
$
|
347,403
|
$
|
347,403
|
||||||||
Shareholder's convertible notes
|
24,965
|
35,354
|
35,354
|
|||||||||
Accumulated deficit
|
(348,052
|
)
|
(336,640
|
)
|
(336,640
|
)
|
||||||
Total equity
|
24,319
|
46,120
|
||||||||||
Total capitalization
|
$
|
269,068
|
$
|
267,137
|
Public offering price per common share
|
$ | |||
As adjusted
(1)
net tangible book value per share before this offering
|
$
|
0.58
|
||
Increase in as adjusted net tangible book value attributable to new investors in this offering
|
$ | |||
As further adjusted
(2)
net tangible book value per share after giving effect to this offering
|
$ | |||
Dilution per share to new investors
|
$ |
As Further Adjusted
Shares Outstanding (2) |
Total Consideration
|
|||||||||||||||||||
Number
|
Percent
|
Amount
(In USD Thousands) |
Percent
|
Average
Price Per Share |
||||||||||||||||
Existing shareholders
|
|
%
|
$ |
|
%
|
$ | ||||||||||||||
New investors
(*)
|
|
%
|
$ |
|
%
|
$ | ||||||||||||||
Total
|
|
%
|
$ |
|
%
|
$ |
(*) |
Before deducting estimated expenses of this offering of $ million.
|
(1) |
The "as adjusted" amounts include the adjustments described in the second bullet of the section entitled "Capitalization" and the issuance of 4,222,223 common shares upon exercise of a conversion option pursuant to the convertible promissory note, dated March 12, 2015, as amended, that we issued to Jelco, 23,516,667 common shares upon exercise of a conversion option pursuant to the convertible promissory note, dated September 7, 2015, as amended, that we issued to Jelco and 15,277,778 common shares upon exercise of a conversion option pursuant to the convertible promissory note, dated September 27, 2017, that we issued to Jelco. Under each of the convertible promissory notes, Jelco, an entity affiliated with our Sponsor, may, at its option, convert the principal amount under each note at any time into common shares at a conversion price of $0.90 per share. As of October 20, 2017, $3.8 million was outstanding under the convertible promissory note dated March 12, 2015, as amended, $21.2 million was outstanding under the convertible promissory note dated September 7, 2015, as amended, and $13.75 million was outstanding under the convertible promissory note dated September 27, 2017.
|
(2) |
The "as further adjusted" amounts include the adjustments described in (1) above and the adjustment described in the third bullet of the section entitled "Capitalization".
|
· |
Modern, High Quality Fleet.
Our Fleet has an average age of 8.5 years as of the date of this prospectus , compared to world-wide Supramax and Capesize drybulk market industry average ages of 9.2 and 8.7 years, respectively, as of that date. We believe that owning a young, modern and well-maintained fleet provides us with a competitive advantage in securing favorable time and spot charters. All of our vessels have been built in high quality shipyards that we view as having a longstanding reputation for building such vessels. We expect that the combination of these factors will provide us with a competitive advantage in securing favorable employment for our vessels, although it is possible that the daily rates we receive on future time and spot charters may be lower depending on market fluctuations.
|
· |
Focus on Capesize Vessels
. Our fleet primarily consists of Capesize vessels. We believe that the Capesize sector will benefit significantly from the increase in demand for commodities such as iron ore and coal. According to Karatzas Marine Advisors & Co. seaborne transportation has increased by 1.7% in 2016 and is expected to increase by 4.5% in 2017. In addition, the newbuilding orderbook has seen a significant reduction for Capesize vessels, currently standing at approximately 3% of the current fleet, lowest in history, compared to 35.4% that has been the average ratio of newbuilding orderbook of the fleet for the last 10 years.
|
· |
Experienced Management
. Our Company's leadership has considerable depth of shipping industry expertise. Mr. Tsantanis, our Chairman, Chief Executive Officer and interim Chief Financial Officer, brings more than 19 years of experience in shipping and finance and has held senior management positions in prominent shipping companies.
|
· |
Access to Attractive Chartering Opportunities
. Fidelity, our commercial manager, has established strong global relationships with charterers and brokers. We believe Fidelity's relationships with these counterparties should provide us with access to attractive chartering opportunities.
|
· |
Expanding Our Fleet Through Accretive Acquisitions
. We intend to acquire drybulk carriers with fuel-efficient specifications and carrying capacities of greater than 170,000 dwt through timely and selective acquisitions, although we may also consider other classes of drybulk carriers as opportunities warrant. We currently view the Capesize vessel class as providing attractive return characteristics given the existing vessel price levels. A key element to our acquisition strategy will be to acquire high-quality vessels at attractive prices. When evaluating acquisitions, we will consider and analyze, among other things, our expectation of fundamental developments in the drybulk shipping industry sector, the level of liquidity in the resale and charter market, the cash flow expected to be earned by a vessel in relation to its value, its condition and technical specifications with particular regard to fuel consumption, expected remaining useful life, the credit quality of the charterer and duration and terms of charter contracts for vessels acquired with charters attached, as well as the overall diversification of our fleet and customers. We believe that these circumstances combined with our management's knowledge of the shipping industry present an opportunity for us to grow our fleet at favorable prices.
|
· |
Well Positioned to Capitalize on an Improving Rate Environment via Spot Market Exposure.
We believe our current eleven-vessel fleet is optimized to capture increasing vessel revenues as a result of an upward trend in spot rates. Currently nine of our eleven vessels are on the spot market and one vessel is employed under an index-linked charter providing us the ability to capture upward movements in rates. The average of the four time charter routes for Baltic Capesize Index, or the BCI TCE, a daily average of charter rates for key Capesize routes published by the Baltic Exchange Limited, which has long been viewed as the main benchmark to monitor the movements of the Capesize vessel charter market, has recently increased significantly by 4,303% from the record low level of $485 per day on March 17, 2016 to $21,356 per day on October 19, 2017. The average BCI TCE of the last ten years has been $29,863 per day. As rates increase we expect to utilize a more balanced portfolio approach for our commercial vessel management. We believe employing a chartering strategy to capture upside opportunities in the spot market with a mixture of fixed-rate time charters as the charter market improves will enable us to reduce downside risks and provide more stability in cash flows. Because the spot market is volatile, there can be no assurance that the recent increases in the drybulk charter market will continue.
|
· |
Operating a Modern, High-Quality Fleet
. Our Fleet had an average age of 8.5 years as of the date of this prospectus, compared to world-wide Supramax and Capesize drybulk market industry average ages of 9.2 and 8.7 years, respectively, as of that date. We believe that owning a young, well-maintained fleet provides us with a competitive advantage in securing favorable time and spot charters. All of our vessels have been built in shipyards that we view as having a longstanding reputation for building quality vessels. We expect that the combination of these factors will provide us with a competitive advantage in securing favorable employment for our vessels.
|
Vessel Name
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
|||||
Championship
|
2011
|
179,238
|
LIB
|
Sungdong
|
Spot
|
|||||
Partnership
|
2012
|
179,213
|
MI
|
Hyundai
|
Time Charter
(1)
|
|||||
Knightship
|
2010
|
178,978
|
LIB
|
Hyundai
|
Spot
|
|||||
Lordship
|
2010
|
178,838
|
LIB
|
Hyundai
|
Time Charter
(2)
|
|||||
Gloriuship
|
2004
|
171,314
|
MI
|
Hyundai
|
Spot
|
|||||
Leadership
|
2001
|
171,199
|
BA
|
Koyo - Imabari
|
Spot
|
|||||
Geniuship
|
2010
|
170,057
|
MI
|
Sungdong
|
Spot
|
|||||
Premiership
|
2010
|
170,024
|
IoM
|
Sungdong
|
Spot
|
|||||
Squireship
|
|
2010
|
|
170,018
|
|
LIB
|
|
Sungdong
|
Spot
|
|
Guardianship
|
|
2011
|
|
56,884
|
|
MI
|
|
CSC Jinling
|
Spot
|
|
Gladiatorship
|
|
2010
|
|
56,819
|
|
BA
|
|
CSC Jinling
|
Spot
|
|
Average Age/Total dwt:
|
|
8.5 years
|
|
1,682,582
|
(1) |
This vessel is being chartered by Uniper Global Commodities SE and was delivered to the charterer on June 13, 2017 for a period of employment of about 12 months to about 18 months at a gross daily rate of $16,200.
|
(2) |
This vessel is being chartered by Oldendorff Carriers GmbH & Co. KG and was delivered to the charterer on June 28, 2017, in direct continuation of the vessel's previous time charter, for a period of about 18 months to about 22 months. The net daily charter hire is calculated at an index linked rate based on the five time charter routes rate of the Baltic Capesize Index. In addition, the time charter provides us an option for any period of time during the hire to be converted into a fixed rate time charter, between three months and 12 months, with a rate corresponding to the prevailing value of the respective Capesize forward freight agreement.
|
Customer
|
2016
|
2015
|
2014
|
|||||||||
A
|
18
|
%
|
-
|
-
|
||||||||
B
|
12
|
%
|
15
|
%
|
-
|
|||||||
C
|
-
|
47
|
%
|
-
|
||||||||
D
|
-
|
12
|
%
|
-
|
||||||||
E
|
-
|
10
|
%
|
-
|
||||||||
F
|
-
|
-
|
59
|
%
|
||||||||
G
|
-
|
-
|
29
|
%
|
||||||||
Total
|
30
|
%
|
84
|
%
|
88
|
%
|
(i) |
injury to, destruction or loss of, or loss of use of, natural resources and related assessment costs;
|
(ii) |
injury to, or economic losses resulting from, the destruction of real and personal property;
|
(iii) |
net loss of taxes, royalties, rents, fees or net profit revenues resulting from injury, destruction or loss of real or personal property, or natural resources;
|
(iv) |
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
(v) |
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources; and
|
(vi) |
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, such as protection from fire, safety or health hazards, and loss of subsistence use of natural resources.
|
· |
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped ships and shore stations, including information on a ship's identity, position, course, speed and navigational status;
|
· |
on-board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on shore;
|
· |
the development of vessel security plans;
|
· |
ship identification number to be permanently marked on a vessel's hull;
|
· |
a continuous synopsis record kept onboard showing a vessel's history including the name of the ship, the state whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ship's identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address; and
|
· |
compliance with flag state security certification requirements.
|
Asset Class / Definition
|
Standard Deadweight Tonnage
|
Standard Trading Routes
|
Primary Cargoes
|
Capesize
|
150,000 - 190,000 dwt
|
· Brazil to China
|
iron ore, coal
|
· Australia to China
|
|||
Panamax Bulker
|
65,000 - 100,000 dwt
|
· US to Far East
|
grains, iron ore, coal
|
Supramax (Handymax, Supramax, Ultramax)
|
40,000 – 65,000 dwt
|
· US to Europe
|
grains, fertilizers, coal, break bulk
|
· Various regional trades
|
Vessel Type
|
Scheduled Delivery (in mil dwt)
|
Present Fleet
|
Total Orderbook
|
|||
2017
|
2018
|
2019+
|
Total Orderbook
|
(as % of Present Fleet, mil dwt)
|
||
Capesize
|
1.4
|
1.6
|
2.7
|
5.7
|
188.2
|
3.03%
|
Panamax
|
16.5
|
4.8
|
4.1
|
25.4
|
201.0
|
12.64%
|
Supramax
|
15.5
|
3.5
|
1.8
|
20.8
|
194.2
|
10.71%
|
Overall
|
33.4
|
9.9
|
8.6
|
51.9
|
583.4
|
8.79%
|
Name
|
Age
|
Position
|
Director Class
|
|||
Stamatios Tsantanis
|
45
|
Chairman, Chief Executive Officer, Interim Chief Financial Officer & Director
|
A (term expires in 2019)
|
|||
Christina Anagnostara
|
46
|
Director
|
B (term expires in 2020)
|
|||
Elias Culucundis
|
74
|
Director*
|
A (term expires in 2019)
|
|||
Dimitris Anagnostopoulos
|
70
|
Director*
|
C (term expires in 2018)
|
|||
Ioannis Kartsonas
|
45
|
Director*
|
C (term expires in 2018)
|
* |
Independent Director
|
Identity of Person or Group
|
Number of
Shares Owned |
Percent of Class
(2)
|
||||||
Claudia Restis
(1)
|
59,780,442
|
74.7
|
%
|
|||||
Stamatios Tsantanis
|
500,200
|
1.4
|
%
|
|||||
Christina Anagnostara
|
—
|
*
|
||||||
Elias Culucundis
|
—
|
*
|
||||||
Dimitris Anagnostopoulos
|
—
|
*
|
||||||
Ioannis Kartsonas
|
—
|
*
|
||||||
Directors and executive officers as a group (5 individuals)
|
644,633
|
1.7
|
%
|
* |
Less than one percent.
|
(1) |
Based on the Schedule 13D/A filed by Jelco, Comet and Claudia Restis on October 20, 2017, Claudia Restis may be deemed to beneficially own 58,927,008 shares of our common shares through Jelco and 853,434 of our common shares through Comet, each through a revocable trust of which she is beneficiary. The shares she may be deemed to beneficially own through Jelco include (i) 4,222,223 shares of Common Stock which Jelco may be deemed to beneficially own, issuable upon exercise of a conversion option pursuant to the Convertible Promissory Note dated March 12, 2015, that we issued to Jelco, (ii) 23,516,667 shares of Common Stock which Jelco may be deemed to beneficially own, issuable upon exercise of a conversion option pursuant to the Convertible Promissory Note dated September 7, 2015, as amended, that we issued to Jelco and (iii) 15,277,778 shares of Common Stock which Jelco may be deemed to beneficially own, issuable upon exercise of a conversion option pursuant to the Convertible Promissory Note dated September 27, 2017, that we issued to Jelco.
|
(2) |
Based on 36,979,346 common shares outstanding as of October 20, 2017 and any additional shares that such person may be deemed to beneficially own in accordance with rule 13d-3 under the Exchange Act.
|
Marshall Islands
|
Delaware
|
|||
Shareholder Meetings
|
||||
Held at a time and place as designated in the bylaws.
|
May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as determined by the board of directors.
|
|||
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the articles of incorporation or by the bylaws.
|
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws.
|
|||
May be held in or outside of the Marshall Islands.
|
May be held in or outside of Delaware.
|
|||
Notice:
|
Notice:
|
|||
•
|
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, unless it is an annual meeting, indicate that it is being issued by or at the direction of the person calling the meeting.
|
•
|
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any.
|
|
•
|
A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before the meeting.
|
•
|
Written notice shall be given not less than 10 nor more than 60 days before the meeting.
|
|
Shareholders' Voting Rights
|
||||
Any action required to be taken by a meeting of shareholders may be taken without a meeting if consent is in writing and is signed by all the shareholders entitled to vote with respect to the subject matter thereof.
|
Any action required to be taken by a meeting of shareholders may be taken without a meeting if a consent for such action is in writing and is signed by shareholders having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
|
|||
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
Marshall Islands
|
Delaware
|
|||
Unless otherwise provided in the articles of incorporation or the bylaws, a majority of shares entitled to vote constitutes a quorum. In no event shall a quorum consist of fewer than one-third of the common shares entitled to vote at a meeting.
|
For stock corporations, the certificate of incorporation or bylaws may specify the number of shares required to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares entitled to vote shall constitute a quorum.
|
|||
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
|
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
|
|||
The articles of incorporation may provide for cumulative voting in the election of directors.
|
The certificate of incorporation may provide for cumulative voting in the election of directors.
|
|||
The board of directors must consist of at least one member.
|
The board of directors must consist of at least one member.
|
|||
Removal:
|
Removal:
|
|||
•
|
If the articles of incorporation or the bylaws so provide, any or all of the directors may be removed without cause by vote of the shareholders.
|
•
|
Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares entitled to vote except: (1) unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (2) if the corporation has cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against such director's removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.
|
|
•
|
Any or all of the directors may be removed for cause by vote of the shareholders.
|
|||
Directors
|
||||
Number of board members can be changed by an amendment to the bylaws, by the shareholders, or by action of the board under the specific provisions of a bylaw.
|
Number of board members shall be fixed by, or in a manner provided by, the bylaws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number shall be made only by amendment to the certificate of incorporation.
|
|||
If the board of directors is authorized to change the number of directors, it can only do so by a majority of the entire board of directors and so long as no decrease in the number shortens the term of any incumbent director.
|
Marshall Islands
|
Delaware
|
|||
Dissenter's Rights of Appraisal
|
||||
Shareholders have a right to dissent from any plan of merger, consolidation or sale of all or substantially all assets not made in the usual course of business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder under the BCA to receive payment of the appraised fair value of his shares is not available for the shares of any class or series of stock, which shares at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of the shareholders to act upon the agreement of merger or consolidation, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders.
|
Appraisal rights shall be available for the shares of any class or series of stock of a corporation in a merger or consolidation, subject to limited exceptions, such as a merger or consolidation of corporations listed on a national securities exchange in which listed shares are the offered consideration or if such shares are held of record by more than 2,000 holders.
|
|||
A holder of any adversely affected shares who does not vote on or consent in writing to an amendment to the articles of incorporation has the right to dissent and to receive payment for such shares if the amendment:
|
||||
•
|
Alters or abolishes any preferential right of any outstanding shares having preference; or
|
|||
•
|
Creates, alters or abolishes any provision or right in respect to the redemption of any outstanding shares.
|
|||
•
|
Alters or abolishes any preemptive right of such holder to acquire shares or other securities; or
|
|||
•
|
Excludes or limits the right of such holder to vote on any matter, except as such right may be limited by the voting rights given to new shares then being authorized of any existing or new class.
|
|||
Shareholders' Derivative Actions
|
||||
An action may be brought in the right of a corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates or of a beneficial interest in such shares or certificates. It shall be made to appear that the plaintiff is such a holder at the time the action is brought and that he was such a holder at the time of the transaction of which he complains, or that his shares or his interest therein devolved upon him by operation of law.
|
In any derivative suit instituted by a shareholder or a corporation, it shall be averred in the complaint that the plaintiff was a shareholder of the corporation at the time of the transaction of which he complains or that such shareholder's stock thereafter devolved upon such shareholder by operation of law.
|
|||
A complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board of directors or the reasons for not making such effort. Such action shall not be discontinued, compromised or settled without the approval of the High Court of the Republic of The Marshall Islands.
|
||||
Attorneys' fees may be awarded if the action is successful.
|
||||
A corporation may require a plaintiff bringing a derivative suit to give security for reasonable expenses if the plaintiff owns less than 5% of any class of stock and the common shares have a value of less than $50,000.
|
· |
an individual citizen or resident of the United States;
|
· |
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) that is created or organized (or treated as created or organized) in or under the laws of the United States, any state thereof or the District of Columbia; or
|
· |
an estate whose income is includible in gross income for U.S. federal income tax purposes regardless of its source; or a trust if (i) a U.S. court can exercise primary supervision over the trust's administration and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
|
· |
financial institutions or "financial services entities";
|
· |
broker-dealers;
|
· |
taxpayers who have elected mark-to-market accounting;
|
· |
tax-exempt entities;
|
· |
governments or agencies or instrumentalities thereof;
|
· |
insurance companies;
|
· |
regulated investment companies;
|
· |
real estate investment trusts;
|
· |
certain expatriates or former long-term residents of the United States;
|
· |
persons that actually or constructively own 10% or more of our voting shares;
|
· |
persons that hold our warrants;
|
· |
persons that hold our common stock as part of a straddle, constructive sale, hedging, conversion or other integrated transaction; or
|
· |
persons whose functional currency is not the U.S. dollar.
|
· |
we are organized in a foreign country (our "country of organization") that grants an "equivalent exemption" to corporations organized in the United States; and
|
· |
more than 50% of the value of our stock is owned, directly or indirectly, by "qualified shareholders," that are persons (i) who are "residents" of our country of organization or of another foreign country that grants an "equivalent exemption" to corporations organized in the United States, and (ii) we satisfy certain substantiation requirements, which we refer to as the "50% Ownership Test;" or
|
· |
our stock is "primarily" and "regularly" traded on one or more established securities markets in our country of organization, in another country that grants an "equivalent exemption" to United States corporations, or in the United States, which we refer to as the "Publicly-Traded Test."
|
· |
we have, or are considered to have, a fixed place of business in the United States involved in the earning of shipping income; and
|
· |
substantially all of our U.S. source gross shipping income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
|
· |
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
· |
at least 50% of the average value of the assets held by the corporation during such taxable year produce, or are held for the production of, passive income.
|
· |
the excess distribution or gain would be allocated ratably over the Non-Electing Holders' aggregate holding period for the common stock;
|
· |
the amount allocated to the current taxable year and any taxable year before we became a passive foreign investment company would be taxed as ordinary income; and
|
· |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
· |
fails to provide an accurate taxpayer identification number;
|
· |
is notified by the IRS that backup withholding is required; or
|
· |
fails in certain circumstances to comply with applicable certification requirements.
|
Name
|
Number of Common Shares
|
||
Maxim Group LLC
|
|
|
|
Total
|
|
|
|
|
Total
|
|||||||||||
|
Per Common
Share |
No
Exercise |
Full
Exercise |
|||||||||
Public offering price
|
$
|
|
$
|
|
$
|
|
||||||
Underwriting discounts and commissions to be paid by us:
|
$
|
|
$
|
|
$
|
|
||||||
Proceeds, before expenses, to us
|
$
|
|
$
|
|
$
|
|
(a) |
to any legal entity which is a qualified investor as defined in the Prospectus Directive;
|
(b) |
to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representative for any such offer; or
|
(c) |
in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of common shares shall result in a requirement for the publication by us or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.
|
(a) |
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the common shares in circumstances in which Section 21(1) of the FSMA does not apply to us; and
|
(b) |
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the common shares in, from or otherwise involving the United Kingdom.
|
Commission registration fee
|
$
|
2,864
|
||
Financial Industry Regulatory Authority Filing fee
|
$
|
3,950
|
||
Printing expenses
|
$
|
*
|
||
Legal fees and expenses
|
$
|
*
|
||
Accounting fees and expenses
|
$
|
*
|
||
Miscellaneous fees
|
$
|
*
|
||
Total
|
$
|
*
|
· |
our Annual Report on Form 20-F for the year ended December 31, 2016, filed with the Commission on April 28, 2017; and
|
· |
our reports on Form 6-K furnished to the Commission on September 29, 2017, announcing the results of our annual meeting of shareholders, and on September 15, 2017, containing our unaudited consolidated interim financial statements and related Management's Discussion and Analysis of Financial Condition and Results of Operations for the six-month period ended June 30, 2017.
|
PROSPECTUS
|
||
Item 6. |
Indemnification of Directors and Officers
|
1. |
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
(i) |
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
|
2. |
For the purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
3. |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
4. |
To file a post-effective amendment to the registration statement to include any financial statements required by "Item 8.A. of Form 20-F" at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
|
5. |
For the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is relying on Rule 430B, each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
6. |
For the purposes of determining liability under the Securities Act of 1933 to any purchaser in the initial distributions of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
|
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
(i) |
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
|
(ii) |
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
SEANERGY MARITIME HOLDINGS CORP.
|
|||
By:
|
/s/ Stamatios Tsantanis
|
||
Name:
|
Stamatios Tsantanis
|
||
Title:
|
Chief Executive Officer
|
Signature
|
Title
|
|
|
||
/s/ Stamatios Tsantanis
|
Director, Chief Executive Officer, Interim Chief Financial Officer, and Chairman of the Board
(Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
|
Stamatios Tsantanis
|
||
/s/ Christina Anagnostara
|
Director
|
|
Christina Anagnostara
|
||
/s/ Dimitris Anagnostopoulos
|
Director
|
|
Dimitris Anagnostopoulos
|
||
/s/ Elias Culucundis
|
Director
Director
|
|
Elias Culucundis
|
||
/s/ Ioannis Kartsonas
|
||
Ioannis Kartsonas
|
PUGLISI & ASSOCIATES
|
||
/s/ Donald J. Puglisi
|
||
Name:
|
Donald J. Puglisi
|
|
Title:
|
Managing Director
|
Number
|
Description
|
|
1.1
|
Form of Underwriting Agreement**
|
|
3.1
|
||
3.2
|
||
3.3
|
||
3.4
|
||
3.5
|
||
3.6
|
||
3.7
|
||
4.1
|
||
4.2
|
||
4.3
|
||
4.4
|
||
5.1 |
Opinion of Seward & Kissel LLP as to the validity of the securities**
|
|
8.1 |
Opinion of Seward & Kissel LLP with respect to certain tax matters**
|
|
10.1
|
||
10.2
|
||
10.3
|
||
10.4
|
||
10.5
|
||
10.6
|
||
10.7
|
||
10.8
|
||
10.9
|
||
10.10
|
||
10.11
|
||
10.12
|
||
10.13
|
||
10.14
|
||
10.15
|
||
10.16
|
||
10.17
|
||
10.18
|
||
10.19
|
||
10.20
|
||
10.21
|
||
10.22
|
10.23
|
||
10.24
|
||
10.25
|
||
10.26
|
||
10.27
|
||
10.28
|
||
10.29
|
||
10.30
|
||
10.31
|
||
10.32
|
||
10.33
|
||
10.34
|
||
10.35
|
||
10.36
|
||
10.37
|
||
10.38
|
||
10.39
|
||
10.40
|
||
10.41
|
||
10.42
|
||
10.43
|
||
10.44
|
||
10.45
|
10.46
|
||
10.47
|
||
10.48
|
||
10.49
|
||
10.50
|
||
10.51
|
||
10.52
|
||
10.53
|
||
10.54
|
||
10.55
|
||
10.56
|
||
10.57
|
||
10.58
|
||
10.59
|
||
10.60
|
||
10.61
|
||
10.62
|
||
10.63
|
||
21.1
|
List of Subsidiaries**
|
|
23.1
|
||
23.2
|
||
23.3
|
Consent of Seward & Kissel LLP (included in its opinion filed as Exhibit 5.1)**
|
|
23.4
|
Consent of Seward & Kissel LLP (included in its opinion filed as Exhibit 8.1)**
|
|
24.1
|
Powers of Attorney (Included in the signature page hereto)
|
*
|
Filed herewith.
|
|||
**
|
To be filed by amendment.
|
|||
(1)
|
Incorporated herein by reference to Annex M to Exhibit 99.1 to Seanergy Maritime Corp.'s report on Form 6-K filed with the Commission on July 31, 2008 (File No. 001-33690).
|
|||
(2)
|
Incorporated herein by reference to Exhibit 99.1 to the registrant's report on Form 6-K filed with the Commission on July 20, 2011.
|
|||
(3)
|
Incorporated herein by reference to Exhibit 3.3 to the registrant's registration statement on Form F-1MEF filed with the Commission on August 28, 2009 (File No. 333--161595).
|
|||
(4)
|
Incorporated herein by reference to Exhibit 3.4 to the registrant's report on Form 6-K filed with the Commission on September 16, 2010 (File No. 001-34848).
|
|||
(5)
|
Incorporated herein by reference to Exhibit 1 to the registrant's report on Form 6-K filed with the Commission on June 27, 2011.
|
|||
(6)
|
Incorporated herein by reference to Exhibit 1 to the registrant's report on Form 6-K filed with the Commission on August 5, 2011.
|
|||
(7)
|
Incorporated herein by reference to Exhibit 3.7 to the registrant's report on Form 6-K filed with the Commission on January 7, 2016.
|
|||
(8)
|
Incorporated herein by reference to Exhibit 4.1 to the registrant's report on Form 6-K filed with the Commission on January 7, 2016.
|
|||
(9)
|
Incorporated herein by reference to Exhibit 4.1 to the registrant's report on Form 6-K filed with the Commission on December 14, 2016
|
|||
(10)
|
Incorporated herein by reference to Exhibit 4.2 to the registrant's report on Form 6-K filed with the Commission on December 14, 2016.
|
|||
(11)
|
Incorporated herein by reference to Exhibit 4.2 to the registrant's report on Form 6-K filed with the Commission on December 21, 2016.
|
(12)
|
Incorporated herein by reference to Exhibit 4.1 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(13)
|
Incorporated herein by reference to Exhibit 4.2 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(14)
|
Incorporated herein by reference to Exhibit C to the Schedule 13D/A related to the registrant filed by United Capital Investments Corp. with the Commission on September 12, 2014.
|
(15)
|
Incorporated herein by reference to Exhibit D to the Schedule 13D related to the registrant filed by Jelco Delta Holding Corp. with the Commission on March 12, 2015.
|
(16)
|
Incorporated herein by reference to Exhibit 4.6 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(17)
|
Incorporated herein by reference to Exhibit 4.51 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(18)
|
Incorporated herein by reference to Exhibit 4.10 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(19)
|
Incorporated herein by reference to Exhibit 4.11 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(20)
|
Incorporated herein by reference to Exhibit 4.12 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(21)
|
Incorporated herein by reference to Exhibit 4.52 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(22)
|
Incorporated herein by reference to Exhibit 4.14 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(23)
|
Incorporated herein by reference to Exhibit 4.15 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(24)
|
Incorporated herein by reference to Exhibit 4.53 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(25)
|
Incorporated herein by reference to Exhibit 4.17 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(26)
|
Incorporated herein by reference to Exhibit 10.18 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(27)
|
Incorporated herein by reference to Exhibit B to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on April 13, 2015.
|
(28)
|
Incorporated herein by reference to Exhibit B to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on October 20, 2017.
|
(29)
|
Incorporated herein by reference to Exhibit 4.57 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(30)
|
Incorporated herein by reference to Exhibit 4.58 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(31)
|
Incorporated herein by reference to Exhibit 4.38 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(32)
|
Incorporated herein by reference to Exhibit 10.43 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(33)
|
Incorporated herein by reference to Exhibit 4.43 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(34)
|
Incorporated herein by reference to Exhibit B to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on October 29, 2015.
|
(35)
|
Incorporated herein by reference to Exhibit C to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on December 29, 2015.
|
(36)
|
Incorporated herein by reference to Exhibit D to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on December 29, 2015.
|
(37)
|
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on February 11, 2016.
|
(38)
|
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on March 14, 2016.
|
(39)
|
Incorporated herein by reference to Exhibit 10.1 to the registrant's report on Form 6-K filed with the Commission on August 5, 2016.
|
(40)
|
Incorporated herein by reference to Exhibit 10.2 to the registrant's report on Form 6-K filed with the Commission on August 5, 2016.
|
(41)
|
Incorporated herein by reference to Exhibit 10.3 to the registrant's report on Form 6-K filed with the Commission on August 5, 2016.
|
(42)
|
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on April 7, 2017.
|
(43)
|
Incorporated herein by reference to Exhibit C to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on October 20, 2017.
|
(44)
|
Incorporated herein by reference to Exhibit 4.39 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(45)
|
Incorporated herein by reference to Exhibit 10.45 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(46)
|
Incorporated herein by reference to Exhibit 10.46 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(47)
|
Incorporated herein by reference to Exhibit 4.47 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(48)
|
Incorporated herein by reference to Exhibit 4.40 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(49)
|
Incorporated herein by reference to Exhibit 10.48 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(50)
|
Incorporated herein by reference to Exhibit 4.41 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(51)
|
Incorporated herein by reference to Exhibit 4.51 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(52)
|
Incorporated herein by reference to Exhibit 4.52 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(53)
|
Incorporated herein by reference to Exhibit 10.50 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(54)
|
Incorporated herein by reference to Exhibit 10.51 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(55)
|
Incorporated herein by reference to Exhibit 10.52 to the registrant's registration statement on Form F-1/A filed with the Commission on November 29, 2016.
|
(56)
|
Incorporated herein by reference to Exhibit 10.53 to the registrant's registration statement on Form F-1/A filed with the Commission on November 29, 2016.
|
(57)
|
Incorporated herein by reference to Exhibit 4.55 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(58)
|
Incorporated herein by reference to Exhibit 4.56 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(59)
|
Incorporated herein by reference to Exhibit 4.57 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(60)
|
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on October 20, 2017.
|
(61)
|
Incorporated herein by reference to Exhibit D to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on October 20, 2017.
|
$4,000,000
|
Athens, Greece
May 14, 2015
|
(a) |
The first three (3) interest periods shall be of two (2) months each and such interest periods shall accrue using the two (2) month LIBOR; and
|
(b) |
The remaining eighteen (18) interest periods shall be of three (3) months each and such interest periods shall accrue using the three (3) month LIBOR.
|
THE MAKER:
SEANERGY MARITIME HOLDINGS CORP.
|
||||
By:
|
/s/ Stamatis Tsantanis
|
|||
Name:
|
Stamatis Tsantanis
|
|||
Title:
|
Chief Executive Officer
|
THE HOLDER:
JELCO DELTA HOLDING CORP.
|
||||
By:
|
/s/ Alastair Macdonald
|
|||
Name:
|
Alastair Macdonald
|
|||
Title:
|
President
|
Name and Address of Investor
|
Principal Amount Owned
|
|||
Jelco Delta Holding Corp.
c/o Western Isles
Jardine House, 4th Floor,
33-35 Reid Street
P.O. Box HM 1431
Hamilton HM FX, Bermuda
|
$4,000,000
|
(A) |
Interest Payment
. The Maker and the Holder each hereby consent to defer the interest payment due under the Note on September 19, 2017 (the "Interest Payment") until October 2, 2017. The Maker and the Holder agree the Maker's failure to pay the Interest Payment on September 19, 2017 shall not constitute an Event of Default. All other interest payments due under the Note pursuant to Section 3 of the Note shall remain due as scheduled.
|
(B) |
Confirmation of Agreement
. Except as expressly set forth herein, the Note is ratified and confirmed in all respects and shall remain in full force and effect in accordance with its terms, and each reference in the Note to "this Note" shall mean the Note as amended by this Consent.
|
(C) |
Counterparts; Effectiveness
. This Consent may be executed in any number of counterparts (including by facsimile) and by different parties hereto in separate counterparts, with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument. This Consent shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
|
(D) |
Governing Law
. The laws of the State of New York shall govern the enforceability and validity of this Consent, the construction of its terms and the interpretation of the rights and duties of the parties, without regard to the principles of conflicts of laws thereof.
|
SEANERGY MARITIME HOLDINGS CORP.
|
|||
By:
|
/s/ Stamatios Tsantanis
|
||
Name:
|
Stamatios Tsantanis
|
||
Title:
|
JELCO DELTA HOLDING CORP.
|
|||
By:
|
/s/ Alastair Macdonald
|
||
Name:
|
Alastair Macdonald
|
||
Title:
|
(A) |
Interest Payment
. The Maker and the Holder each hereby consent to defer the interest payment due under the Note on September 11, 2017 (the "Interest Payment") until October 2, 2017. The Maker and the Holder agree the Maker's failure to pay the Interest Payment on September 11, 2017 shall not constitute an Event of Defualt. All other interest payments due under the Note pursuant to Section 3 of the Note shall remain due as scheduled.
|
(B) |
Confirmation of Agreement
. Except as expressly set forth herein, the Note is ratified and confirmed in all respects and shall remain in full force and effect in accordance with its terms, and each reference in the Note to "this Note" shall mean the Note as amended by this Consent.
|
(C) |
Counterparts; Effectiveness
. This Consent may be executed in any number of counterparts (including by facsimile) and by different parties hereto in separate counterparl.s, with the same effect as if all patties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument. This Consent shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
|
(D) |
Governing Law
. The laws of the State of New York shall govern the enforceability and validity of this Consent, the construction of its terms and the interpretation of the rights and duties of the parties, without regard to the principles of conflicts of laws thereof.
|
THE MAKER:
|
||
SEANERGY MARITIME HOLDINGS CORP.
|
||
By:
|
/s/ Stamatis Tsantanis | |
Name: Stamatis Tsantanis
|
||
Title: Chief Executive Officer
|
||
THE HOLDER
:
|
||
JELCO DELTA HOLDING CORP.
|
||
By:
|
/s/ Alastair Macdonald | |
Name: Alastair Macdonald
|
||
Title: President
|
||
To: |
PREMIER MARINE CO.
|
From: |
UniCredit Bank AG
|
1 |
We hereby confirm our approval, consent and acceptance of the Request above from the Effective Date, subject to the satisfaction of the conditions referred to in paragraphs (a)-(g) below.
|
(a) |
a bringdown certificate of the Secretary of the Borrowers and the Guarantor specifying the directors and officers of the Borrowers and the Guarantor, the authorised and issued share capital and the holders of the shares therein and certifying that there are no changes to the documents provided by the Borrowers and the Guarantor under schedule 2, part A, paragraphs 1.2 and 1.3 of the Facility Agreement;
|
(b) |
the original resolutions of the directors and the shareholders of the Borrowers and the Guarantor (together, where appropriate, with signed waivers of notice of any directors' or shareholders' meetings) approving, and authorising or ratifying the execution of, this Letter and any document to be executed by the Borrowers and the Corporate Guarantor pursuant to this Letter;
|
(c) |
an original power of attorney of the Borrowers and the Guarantor under which this Letter and any documents required pursuant to any of them are to be executed by the Borrowers and the Guarantor;
|
(d) |
certified copies of all documents (if any) evidencing any other necessary action, approvals or consents with respect to this Letter (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Lender deems appropriate;
|
(e) |
an original of this Letter duly executed by the Lender and acknowledged by the Borrowers and the Guarantor; and
|
(f) |
evidence that the process agent referred to in Clause 9 of this Letter has accepted its appointment as agent for service of process under this Letter.
|
2 |
Conditions Subsequent
|
3 |
Amendments to the Facility Agreement
|
Date
|
Repayment Instalment Amount ($)
|
2 October 2017
|
1,552,000
|
27 December 2017
|
1,552,000
|
26 March 2018
|
1,552,000
|
25 June 2018
|
1,552,000
|
25 September 2018
|
1,552,000
|
27 December 2018
|
1,552,000
|
26 March 2019
|
1,552,000
|
25 June 2019
|
1,552,000
|
25 September 2019
|
1,552,000
|
27 December 2019
|
1,552,000
|
26 March 2020
|
1,552,000
|
25 June 2020
|
1,552,000
|
25 September 2020
|
1,552,000
|
28 December 2020
|
30,976,790
|
(b) |
by construing throughout all references in the Facility Agreement to "this Agreement" and all references in the Finance Documents (other than the Facility Agreement) to the "Facility Agreement" as references to the Facility Agreement as amended and supplemented by this Letter.
|
4 |
Representations and Warranties
|
5 |
Re-affirmation of Facility Agreement
|
6 |
Costs and Expenses
|
7 |
Notices
|
8 |
Governing law
|
/s/ Borchert
|
/s/ Koursaris
|
Borchert
for and on behalf of
UniCredit Bank AG
as Lender
|
Koursaris
for and on behalf of
UniCredit Bank AG
as Lender
|
(1) |
E.S.V.M. Schiffahrt GmbH & Co. KG
, having its registered office at Herdentorswallstraße 93, 28195 Bremen, Germany (the
"Sellers"
);
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (
"Seanergy"
); and
|
(3) |
LORD OCEAN NAVIGATION CO.
, having its registered office at 80 Broad Street, Monrovia, Liberia (the
"Buyers"
).
|
(A)
|
The Sellers are the registered owners of the
E.R. BAVARIA
currently registered under the Liberia flag and under the German Registry with IMO number 9519066 (the
"Vessel"
); and
|
(B)
|
The Sellers and Seanergy have entered into a "SALEFORM 2012" Memorandum of Agreement dated 26 September 2016 (together with any and all addenda thereto referred to as the
"Agreement"
) for the sale of the Vessel by the Sellers to Seanergy or its guaranteed nominee.
|
EXECUTED
By
for and on behalf of
E.S.V.M. Schiffahrt GmbH & Co. KG
|
)
)
)
)
|
/s/ [illegible]
..........................................
|
EXECUTED
By Stamatios Tsantanis
for and on behalf of
SEANERGY MARITIME HOLDINGS CORP.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
.........................................
|
EXECUTED
By Stamatios Tsantanis
for and on behalf of
LORD OCEAN NAVIGATION CO.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
..........................................
|
(1) |
E.S.V.M. Schiffahrt GmbH & Co. KG, having its registered office at HerdentorswallstraBe 93, 28195 Bremen, Germany (the "
Sellers
"); and
|
(2) |
LORD OCEAN NAVIGATION CO
., having its registered office at 80 Broad Street, Monrovia, Liberia (the "
Buyers
");
|
(A) |
The Sellers are the registered owners of the
E.R. BAVARIA
currently registered under the Liberian flag and under the German Registry with IMO number 9519066 (the "
Vessel
"); and
|
(B) |
Through a nomination of the Buyers as buyers by Seanergy Maritime Holdings Corp. of Majuro, The Marshall Islands ("
Seanergy
"), the Sellers and Buyers have entered into a "SALEFORM 2012" Memorandum of Agreement dated 26 September 2016 (together with Addendum no.1 dated 6 October 2016 and any and all addenda thereto referred to as the "
Agreement
") for the sale of the Vessel by the Sellers to the Buyers.
|
(C) |
Pursuant to the terms of the first two paragraphs of Clause 9 of the Agreement the Sellers have undertaken to indemnify the Buyers against all consequences of any claim made or threatened against the Vessel which was incurred prior to the time of delivery or arose out of or with respect to events occurred prior to the time of delivery to the Buyers, up to a maximum total amount of United States Dollars Three Hundred Thousand (USD 300,000.00) (the "
Security Amount
"), and it has been further agreed that the Security Amount
will be deposited by the Sellers in a joint
escrow account (the "
Second Escrow Account
") in Hamburg with the Deposit Holder (as defined in the Agreement).
|
(D) |
The Sellers have requested from the Buyers to amend this provision in a way that, instead of the Sellers, E.R. Capital Holding GmbH & Cie KG, having its registered office at Hohe Bleichen 12, 20354 Hamburg, Germany (the "
Sellers' Parent Entity
") pays the Security Amount into the Second Escrow Account.
|
(E) |
Subject to the terms and conditions of this Addendum No. 2, the Buyers and the Sellers' Parent Entity are willing to agree and consent to Sellers' request described under recital (D) above.
|
1. |
Terms defined in the Agreement shall have the same meaning when herein used, unless the context otherwise requires.
|
2. |
Therefore, the first two paragraphs of Clause 9 of the Agreement shall be deemed replaced as follows:
|
3. |
The Security Amount Escrow Agreement shall be entered into substantially on the teims set out in
Exhibit "A"
hereto.
|
4. |
The Parties agree and accept that the Security Amount Escrow Agreement will be concluded between Seanergy, the Sellers' Parent Entity and the Deposit Holder. As the Security Amount is meant to secure certain claims pursuant to Clause 9 of the Agreement in the contractual relationship between the Sellers and the Buyers, the Sellers shall procure that the Sellers' Parent Entity will perform and exercise all rights and obligations pursuant to the Security Amount Escrow Agreement in accordance with Sellers' instructions, and the Buyers shall procure that Seanergy will perform and exercise all rights and obligations pursuant to the Security Amount Escrow Agreement in accordance with Buyers' instructions. For the avoidance of doubt, in particular but without limitation, Seanergy may notify any claims of the Buyers for indemnification under the Security Amount Escrow Agreement and neither the Sellers nor the Sellers' Parent Entity shall be entitled to reject such notification of a claim based on the fact that this is being raised by Seanergy instead of the Buyers.
|
5. |
It is further agreed that the Security Amount paid or which will be paid by the Sellers' Parent Entity shall be deemed in fulfilment of the Sellers' obligation to lodge the Security Amount and shall constitute security for the correct fulfilment by the Sellers of their obligations under the first two paragraphs of Clause 9 of the Agreement. Release of the Security Amount or parts thereof to Seanergy shall be deemed in fulfilment of the Sellers' obligations to indemnify the Buyers under the first two paragraphs of Clause 9 of the Agreement.
|
6. |
Consequently to the above amendments to the Agreement, Clause 20 o) of the Agreement shall be deemed deleted.
|
7. |
Consequently to the above amendments
to
the Agreement, the following change of Clause 22 of the Agreement (Closing Procedure) is agreed:
|
EXECUTED
|
)
|
|
By Sven Lundehn
|
)
|
/s/ Sven Lundehn
|
for and on behalf of
|
)
|
…………………………
|
E.S.V.M. Schiffahrt GmbH & Co. KG
|
)
|
EXECUTED
|
)
|
|
By Stamatios Tsantanis
|
)
|
/s/ Stamatios Tsantanis
|
for and on behalf of
|
)
|
…………………………
|
LORD OCEAN NAVIGATION CO.
|
)
|
EXECUTED
|
)
|
|
By Anke Hennings
|
)
|
/s/ Anke Hennings |
for and on behalf of
|
)
|
…………………………
|
E.R. Capital Holding GmbH & Cie. KG
|
)
|
EXECUTED
|
)
|
|
By Stamatios Tsantanis
|
)
|
/s/ Stamatios Tsantanis
|
for and on behalf of
|
)
|
…………………………
|
Seanergy Maritime Holdings Corp.
|
)
|
(1) |
E.R. Capital Holding GmbH & Cie. KG,
Hohe Bleichen 12, 20354 Hamburg, Germany (the
"Grantor");
|
(2) |
Seanergy Maritime Holdings Corp.,
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands
("Seanergy");
|
(3) |
the Notary
Dr. Jan-Thomas Oskierski,
Neuer Wall 41, 20354 Hamburg, Germany (the
"Escrow Agent").
|
(1) |
E.S.V.M. Schiffahrt GmbH & Co. KG of Herdentorswallstral3e 93, 28195 Bremen, Germany (the
"Sellers")
are the owners of MV "E.R. BAVARIA" (IMO-No. 9519066) (the "Vessel"),
|
(2) |
The Sellers have agreed to sell the Vessel to Seanergy or its guaranteed nominee and Seanergy have agreed to buy the Vessel from Sellers on the terms and conditions set out in a Memorandum of Agreement dated 26 September 2016 (as from time to time amended the "MoA")
|
(3) |
By an addendum number 1 to the MoA dated 6 October 2016, Seanergy has nominated Lord Ocean Navigation Co. of 80 Broad Street, Monrovia, Liberia (the
"Buyers")
as buyers under the MoA, and the Sellers have accepted this nomination.
|
(4) |
Pursuant to the terms of Clause 9 of the MoA the Sellers have undertaken to indemnify the Buyers against all consequences of any claim made or threatened within four (4) months from the time of delivery of the Vessel against the Vessel which was incurred prior to the time of delivery or arose out of or with respect to events occurred prior to the time of delivery (the
"Claims")
to the Buyers, up to a maximum total amount of United States Dollars Three Hundred Thousand (USD 300,000.00) (the
"Security Amount"),
and it has been further agreed that the Security Amount will be deposited by the Sellers in a joint escrow account with the Escrow Agent where it shall stand as security for any Claims.
|
(5) |
The Grantor, the Buyers, Seanergy and the Sellers have agreed by an addendum no. 2 to the MoA, dated on or around the date hereof, that the Security Amount will be deposited by the Grantor in the place and instead of the Sellers, and that this Agreement relating to the relevant escrow account will be concluded between the Grantor, Seanergy and the Escrow Agent.
|
1. |
Seanergy and the Grantor hereby jointly and severally appoint and designate the Escrow Agent for the purpose hereinafter specified, and the Escrow Agent hereby accepts such appointment and designation under German notarial law ("notarielle Verwahrung").
|
2. |
Subject to receipt of the documents referred to in Clause 3 below, the Escrow Agent shall accept the Security Amount paid to him as aforesaid as trustee/notary for Seanergy and the Grantor and shall hold such Security Amount in the following account:
|
3. |
The parties hereby undertake to deliver to the Escrow Agent as soon as possible,
and
in any event prior to the delivery of the Vessel, all documents as may be required by the Escrow Agent to comply with any applicable anti-money laundering law provisions, namely:
|
a. |
In respect of any company registered in the German commercial register or in any other commercial register with similar contents and creating public faith:
|
i. |
(electronic) Extract from the commercial register for the Grantor and (if applicable) their personal liable partner, not older than 14 days,
|
ii. |
(only if this Agreement is not signed by a duly authorised legal representative) original power of attorney authorising persons to sign this Agreement as well as any addenda to it, to give instructions in respect of the deposit and to sign any release letter, notarised,
|
iii. |
passport copy of the signatory(s) of this Agreement;
|
i. |
certified copy of the Certificate of Incorporation and of the Articles of Association and By-laws as currently in force,
|
ii. |
certified copy of a Certificate of Good Standing issued by the competent Companies' Register not older than thirty (30) days,
|
iii. |
original Certificate
of Incumbency showing
the directors not older than thirty (30) days,
|
iv. |
original directors' resolutions covering the acquisition of the Vessel and the execution of this Agreement,
|
v. |
original power of attorney authorising persons to sign this Agreement as well as any addenda to it, to give instructions in respect of the Security Amount and to sign any release letter, duly certified and legalised by Apostille,
|
vi. |
passport copy of the signatory(s) of this Agreement,
|
vii. |
Organisational chart setting out the beneficial shareholding of the relevant party, showing the ultimate beneficial shareholder (i.e. any party holding directly or indirectly an interest of 25% or more in the Grantor or Seanergy). This is not required, if the relevant party is a publicly listed or publicly controlled company;
|
i. |
Statement from CEO regarding the fact, that the company is publicly listed,
|
ii. |
Annual Report of the publicly listed company filed with the Securities and Exchange Commission;
|
d. |
In case any director of a party is itself a company, the same documentation will be required for this director company until such time as the acting person is a natural person;
|
4. |
The duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement and the Escrow Agent shall not be liable except for the performance of such duties and obligations as arc specifically set out in this Agreement. The Escrow Agent shall have no implied duties or obligations and shall not be affected with knowledge or notice of any fact or circumstance not specifically set out in this Agreement. In his actions under this Agreement, the Escrow Agent may at all times rely on all signatures, certificates or documents, which he deems genuine in good faith.
|
5. |
The Security Amount or part thereof and any interest accrued thereon, if any, shall be held by the Escrow Agent according to the following terms:
|
a. |
The first half (50%) of the Security Amount on the Escrow Account shall be released to the Grantor's bank account (to be advised by the Grantor) two (2) months after the delivery date of the Vessel, such delivery date to be advised to the Escrow Agent by a copy of the signed protocol of delivery and acceptance to be submitted to the Escrow Agent, and the remaining 50 % of the Security Amount shall be released to the Grantor's bank account (to be advised by the Grantor) four (4) months after the aforesaid delivery date of the Vessel (in each case a
"Release Date"),
any such release shall be made ONLY upon provision of joint written instructions to the Escrow Agent signed by the Grantor's and Seanergy's authorised signatories.
|
b. |
Should the Escrow Agent and the Grantor on or before a Release Date receive a notice in writing from Seanergy (a
"Notice of Claim")
stating that a Claim was made or threatened against the Vessel, and providing evidence that such Claim being raised to the extent available to Seanergy the Escrow Agent shall not release part of the Security Amount which corresponds with the amount of the Claim as specified by
|
i. |
Either the Claim as specified by Seanergy in the Notice of Claim is accepted, with the consequence that such amount shall be immediately released to Seanergy's bank account (to be advised by Seanergy to the Escrow Agent) by the Escrow Agent pursuant to written instructions in accordance with Clause 5. c. below, such instructions to be given by the Parties promptly; or
|
ii. |
There is a dispute as to the entitlement of Seanergy to receive the amounts specified in the Notice of Claim forming part or the entire Security Amount, then any amounts specified in such Notice of Claim as being in dispute are not to be released on the relevant Release Date (save to the extent the relevant Notice of Claim has been withdrawn by Seanergy in writing towards the Grantor and the Escrow Agent) and are only to be released in accordance with Clause 5. c. below.
|
i. |
written instructions jointly signed by each of the Grantor's and the Seanergy's duly authorized Attorneys-in-Fact as named below instructing the Escrow Agent as to the disposition of the Security Amount or the part of the Security Amount; in case such written instructions shall be sent to the Escrow Agent by telefax or email, the Escrow Agent does not have to verify the correctness of that telefax and email and the Parties will not hold the Escrow Agent responsible or liable for the relying on the validity of that telefax or email. However, if the above signatories, therefore, do not appear in front of the Escrow Agent for the releasing of a.m. funds for proper identification, the Escrow Agent will be provided by telefax or email with valid passport copies of the a.m. signatories; or
|
ii. |
an original or certified copy of an arbitration award determining the disposition of the Security Amount or the part of the Security Amount (the
"Arbitration Award").
The tribunal appointed to adjudicate the disputes arising out of the MoA shall have full authority and jurisdiction to make an order regarding the determination of the disposition of the Security Amount; or
|
iii. |
an original or certified copy of a final and unappealable court order determining the disposition of the Security Amount (the
"Court Order");
regardless of any extensions of time limits for appeals, which any court may be empowered to grant,
|
6. |
Duly authorised Attorneys-in-Fact of the Grantor are any one of:
|
7. |
Duly authorised Attorneys-in-Fact of Seanergy are any one of:
|
8. |
All banking costs (fees and charges, including for the avoidance of doubt, any fees charged by
|
9. |
The parties shall jointly and severally indemnify and keep indemnified the Escrow Agent from and against:
|
a. |
all income, corporation, withholding and such other taxes and similar deductions payable by the Escrow Agent in respect of it agreeing to hold the Funds in escrow; and
|
b. |
all costs, charges and expenses reasonably incurred by the Escrow Agent by any action other than covered by the fee agreed in Clause 10. below (including, without limitation, in connection with any dispute which may arise between the Grantor and the Seanergy as to the payment of the Security Amount and/or the ownership thereof).
|
c. |
all actions, proceedings, claims, demands and liabilities, which the Escrow Agent may suffer or incur in connection with the performance of its obligations under this Agreement, except any arising out of its fraud, wilful default or gross negligence.
|
10. |
The Escrow Agent's fee for opening, holding and closing the Escrow Account is EUR 877,50 (which corresponds to a 1.5 fee according to the statutory German Court and Notary Fees Act
[Gerichts- and Notarkostengesetz — GNotKG]
calculated on the value of the Security Amount at the exchange rate applicable on or about the date of this Agreement) plus ancillary charges and plus, where applicable, VAT and is due upon opening of the Escrow Account and shall be borne by the Grantor.
|
11. |
Each Party shall have the right to seek and obtain information from the Escrow Account with regard to the status of the Security Amount and the Escrow Agent shall provide such information as such Party may reasonably require.
|
12. |
This Agreement shall be governed by and will be construed in accordance with the laws of Germany. The courts of Hamburg shall have jurisdiction.
|
____________________ |
/s/ Stamatios Tsantanis
|
/s/ Jan Thomas Oskierski
|
Signed by:
|
Signed by:
|
Signed by:
|
Mr.
|
Mr. Stamatios Tsantanis
|
Mr. Jan-Thomas Oskierski
|
(1) |
E.A.D.M. Schiffahrt GmbH & Co. KG
, having its registered office at Herdentorswallstraße 93, 28195 Bremen, Germany (the
"Sellers"
);
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (
"Seanergy"
); and
|
(3) |
KNIGHT OCEAN NAVIGATION CO.
, having its registered office at 80 Broad Street, Monrovia, Liberia (the
"Buyers"
).
|
(A) |
The Sellers are the registered owners of the
E.R. BAYERN
currently registered under the Luxemburg flag and under the German Registry with IMO number 9507893 (the
"Vessel"
); and
|
(B) |
The Sellers and Seanergy have entered into a "SALEFORM 2012" Memorandum of Agreement dated 26 September 2016 (together with any and all addenda thereto referred to as the
"Agreement"
) for the sale of the Vessel by the Sellers to Seanergy or its guaranteed nominee.
|
EXECUTED
By
for and on behalf of
E.A.D.M. Schiffahrt GmbH & Co. KG
|
)
)
)
)
|
/s/ [illegible]
..........................................
|
|
||
EXECUTED
By Stamatios Tsantanis
for and on behalf of
SEANERGY MARITIME HOLDINGS CORP.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
.........................................
|
|
||
EXECUTED
By Stamatios Tsantanis
for and on behalf of
KNIGHT OCEAN NAVIGATION CO.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
..........................................
|
(1) |
E.A.D.M. Schiffahrt GmbH & Co. KG
, having its registered office at Herdentorswallstraße 93, 28195 Bremen, Germany (the
"Sellers"
); and
|
(2) |
KNIGHT OCEAN NAVIGATION CO.
, having its registered office at 80 Broad Street, Monrovia, Liberia (the
"Buyers"
);
|
(A) |
The Sellers are the registered owners of the
E.R. BAYERN
currently registered under the Luxemburg flag and under the German Registry with IMO number 9507893 (the
"Vessel"
); and
|
(B) |
Through a nomination of the Buyers as buyers by Seanergy Maritime Holdings Corp. of Majuro, The Marshall Islands ("
Seanergy
"), the Sellers and Buyers have entered into a "SALEFORM 2012" Memorandum of Agreement dated 26 September 2016 (together with Addendum no.1 dated 6 October 2016 and any and all addenda thereto referred to as the "
Agreement
") for the sale of the Vessel by the Sellers to the Buyers.
|
(C) |
Pursuant to the terms of Clause 9 of the Agreement the Sellers have undertaken to indemnify the Buyers against all consequences of any claim made or threatened against the Vessel which was incurred prior to the time of delivery or arose out of or with respect to events occurred prior to the time of delivery to the Buyers, up to a maximum total amount of United States Dollars Three Hundred Thousand (USD 300,000.00) (the "
Security
Amount
"), and it has been further agreed that the Security Amount will be deposited by the Sellers in a joint escrow account (the "
Second Escrow Account
") in Hamburg with the Deposit Holder (as defined in the Agreement).
|
(D) |
The Sellers have requested from the Buyers to amend this provision in a way that, instead of the Sellers, E.R. Capital Holding GmbH & Cie KG, having its registered office at Hohe Bleichen 12, 20354 Hamburg, Germany (the "
Sellers' Parent Entity
") pays the Security Amount into the Second Escrow Account.
|
(E) |
Subject to the terms and conditions of this Addendum No. 2, the Buyers and the Sellers' Parent Entity are willing to agree and consent to Sellers' request described under recital (D) above.
|
1. |
Terms defined in the Agreement shall have the same meaning when herein used, unless the context otherwise requires.
|
2. |
Therefore, Clause 9 of the Agreement shall be deemed replaced as follows:
|
3. |
The Security Amount Escrow Agreement shall be entered into substantially on the terms set out in
Exhibit "A"
hereto.
|
4. |
The Parties agree and accept that the Security Amount Escrow Agreement will be concluded between Seanergy, the Sellers' Parent Entity and the Deposit Holder. As the Security Amount is meant to secure certain claims pursuant to Clause 9 of the Agreement in the contractual relationship between the Sellers and the Buyers, the Sellers shall procure that the Sellers' Parent Entity will perform and exercise all rights and obligations pursuant to the Security Amount Escrow Agreement in accordance with Sellers' instructions, and the Buyers shall procure that Seanergy will perform and exercise all rights and obligations pursuant to the Security Amount Escrow Agreement in accordance with Buyers' instructions. For the avoidance of doubt, in particular but without limitation, Seanergy may notify any claims of the Buyers for indemnification under the Security Amount Escrow Agreement and neither the Sellers nor the Sellers' Parent Entity shall be entitled to reject such notification of a claim based on the fact that this is being raised by Seanergy instead of the Buyers.
|
5. |
It is further agreed that the Security Amount paid or which will be paid by the Sellers' Parent Entity shall be deemed in fulfilment of the Sellers' obligation to lodge the Security Amount and shall constitute security for the correct fulfilment by the Sellers of their obligations under Clause 9 of the Agreement. Release of the Security Amount or parts thereof to Seanergy shall be deemed in fulfilment of the Sellers' obligations to indemnify the Buyers under Clause 9 of the Agreement.
|
6. |
Consequently to the above amendments to the Agreement, Clause 20 o) of the Agreement shall be deemed deleted.
|
7. |
Consequently to the above amendments to the Agreement, the following change of Clause 22 of the Agreement (Closing Procedure) is agreed:
|
a) |
At the end of Clause 22 a), the following new and additional sentence is added:
|
b) |
At the end of Clause 22 b), the following new and additional sentence is added:
|
c) |
Clause 22 j) shall be deemed deleted.
|
EXECUTED
By Sven Lundehn
for and on behalf of
E.A.D.M. Schiffahrt GmbH & Co. KG
|
)
)
)
)
|
/s/ Sven Lundehn
................................
|
EXECUTED
By Stamatios Tsantanis
for and on behalf of
KNIGHT OCEAN NAVIGATION CO.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
................................
|
EXECUTED
By
for and on behalf of
E.R. Capital Holding GmbH & Cie. KG
|
)
)
)
)
|
................................
|
EXECUTED
By Stamatios Tsantanis
for and on behalf of
Seanergy Maritime Holdings Corp.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
................................
|
(1) |
E.R. Capital Holding GmbH & Cie. KG
, Hohe Bleichen 12, 20354 Hamburg, Germany (the "
Grantor
");
|
(2) |
Seanergy Maritime Holdings Corp.
, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands ("
Seanergy
");
|
(3) |
the Notary
Dr. Jan-Thomas Oskierski
, Neuer Wall 41, 20354 Hamburg, Germany (the "
Escrow Agent
").
|
(1) |
E.A.D.M. Schiffahrt GmbH & Co. KG of Herdentorswallstraße 93, 28195 Bremen, Germany (the "
Sellers
") are the owners of MV "E.R. BAYERN" (IMO-No. 9507893) (the "
Vessel
").
|
(2) |
The Sellers have agreed to sell the Vessel to Seanergy or its guaranteed nominee and Seanergy have agreed to buy the Vessel from Sellers on the terms and conditions set out in a Memorandum of Agreement dated 26 September 2016 (as from time to time amended the "
MoA
").
|
(3) |
By an addendum number 1 to the MoA dated 6 October 2016, Seanergy has nominated Knight Ocean Navigation Co. of 80 Broad Street, Monrovia, Liberia (the "
Buyers
") as buyers under the MoA, and the Sellers have accepted this nomination.
|
(4) |
Pursuant to the terms of Clause 9 of the MoA the Sellers have undertaken to indemnify the Buyers against all consequences of any claim made or threatened within four (4) months from the time of delivery of the Vessel against the Vessel which was incurred prior to the time of delivery or arose out of or with respect to events occurred prior to the time of delivery (the "
Claims
") to the Buyers, up to a maximum total amount of United States Dollars Three Hundred Thousand (USD 300,000.00) (the "
Security Amount
"), and it has been further agreed that the Security Amount will be deposited by the Sellers in a joint escrow account with the Escrow Agent where it shall stand as security for any Claims.
|
(5) |
The Grantor, the Buyers, Seanergy and the Sellers have agreed by an addendum no. 2 to the MoA, dated on or around the date hereof, that the Security Amount will be deposited by the Grantor in the place and instead of the Sellers, and that this Agreement relating to the relevant escrow account will be concluded between the Grantor, Seanergy and the Escrow Agent.
|
1. |
Seanergy and the Grantor hereby jointly and severally appoint and designate the Escrow Agent for the purpose hereinafter specified, and the Escrow Agent hereby accepts such appointment and designation under German notarial law ("notarielle Verwahrung").
|
2. |
Subject to receipt of the documents referred to in Clause 3 below, the Escrow Agent shall accept the Security Amount paid to him as aforesaid as trustee/notary for Seanergy and the Grantor and shall hold such Security Amount in the following account:
|
Account holder:
|
Dr. Jan-Thomas Oskierski
|
Account no.:
|
[]
|
With:
|
Deutsche Bank PGK AG Hamburg
|
SWIFT CODE:
|
DEUTDEDBHAM
|
Purpose:
|
Security Amount for MV "E.R. BAYERN" as per clause 9 of the MoA
|
3. |
The parties hereby undertake to deliver to the Escrow Agent as soon as possible, and in any event prior to the delivery of the Vessel, all documents as may be required by the Escrow Agent to comply with any applicable anti-money laundering law provisions, namely:
|
a. |
In respect of any company registered in the German commercial register or in any other commercial register with similar contents and creating public faith:
|
i. |
(electronic) Extract from the commercial register for the Grantor and (if applicable) their personal liable partner, not older than 14 days,
|
ii. |
(only if this Agreement is not signed by a duly authorised legal representative) original power of attorney authorising persons to sign this Agreement as well as any addenda to it, to give instructions in respect of the deposit and to sign any release letter, notarised,
|
iii. |
passport copy of the signatory(s) of this Agreement;
|
b. |
in respect of any non-German company (as available in the country of incorporation)
|
i. |
certified copy of the Certificate of Incorporation and of the Articles of Association and By-laws as currently in force,
|
ii. |
certified copy of a Certificate of Good Standing issued by the competent Companies' Register not older than thirty (30) days,
|
iii. |
original Certificate of Incumbency showing the directors not older than thirty (30) days,
|
iv. |
original directors' resolutions covering the acquisition of the Vessel and the execution of this Agreement,
|
v. |
original power of attorney authorising persons to sign this Agreement as well as any addenda to it, to give instructions in respect of the Security Amount and to sign any release letter, duly certified and legalised by Apostille,
|
vi. |
passport copy of the signatory(s) of this Agreement,
|
vii. |
Organisational chart setting out the beneficial shareholding of the relevant party, showing the ultimate beneficial shareholder (i.e. any party holding directly or indirectly an interest
|
c. |
In case of a publicly listed company insted of b. vii.
|
i. |
Statement from CEO regarding the fact, that the company is publicly listed,
|
ii. |
Annual Report of the publicly listed company filed with the Securities and Exchange Commission;
|
d. |
In case any director of a party is itself a company, the same documentation will be required for this director company until such time as the acting person is a natural person;
|
4. |
The duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set out in this Agreement. The Escrow Agent shall have no implied duties or obligations and shall not be affected with knowledge or notice of any fact or circumstance not specifically set out in this Agreement. In his actions under this Agreement, the Escrow Agent may at all times rely on all signatures, certificates or documents, which he deems genuine in good faith.
|
5. |
The Security Amount or part thereof and any interest accrued thereon, if any, shall be held by the Escrow Agent according to the following terms:
|
a. |
The first half (50%) of the Security Amount on the Escrow Account shall be released to the Grantor's bank account (to be advised by the Grantor) two (2) months after the delivery date of the Vessel, such delivery date to be advised to the Escrow Agent by a copy of the signed protocol of delivery and acceptance to be submitted to the Escrow Agent, and the remaining 50 % of the Security Amount shall be released to the Grantor's bank account (to be advised by the Grantor) four (4) months after the aforesaid delivery date of the Vessel (in each case a "
Release Date
"), any such release shall be made ONLY upon provision of joint written instructions to the Escrow Agent signed by the Grantor's and Seanergy's authorised signatories.
|
b. |
Should the Escrow Agent and the Grantor on or before a Release Date receive a notice in writing from Seanergy (a "
Notice of Claim
") stating that a Claim was made or threatened against the Vessel, and providing evidence that such Claim being raised to the extent available to Seanergy the Escrow Agent shall not release part of the Security Amount which corresponds with the amount of the Claim as specified by Seanergy in the Notice of Claim and the following procedures shall apply alternatively:
|
i. |
Either the Claim as specified by Seanergy in the Notice of Claim is accepted, with the consequence that such amount shall be immediately released to Seanergy's bank account (to be advised by Seanergy to the Escrow Agent) by the Escrow Agent pursuant to written instructions in accordance with Clause 5. c. below, such instructions to be given by the Parties promptly; or
|
ii. |
There is a dispute as to the entitlement of Seanergy to receive the amounts specified in the Notice of Claim forming part or the entire Security Amount, then any amounts specified in such Notice of Claim as being in dispute are not to be released on the relevant Release Date (save to the extent the relevant Notice of Claim has been withdrawn by Seanergy in writing towards the Grantor and the Escrow Agent) and are only to be released in accordance with Clause 5. c. below.
|
c. |
In any case the Escrow Agent shall hold the Security Amount, or any part thereof, until he is presented with:
|
i. |
written instructions jointly signed by each of the Grantor's and the Seanergy's duly authorized Attorneys-in-Fact as named below instructing the Escrow Agent as to the disposition of the Security Amount or the part of the Security Amount; in case such written instructions shall be sent to the Escrow Agent by telefax or email, the Escrow Agent does not have to verify the correctness of that telefax and email and the Parties will not hold the Escrow Agent responsible or liable for the relying on the validity of that telefax or email. However, if the above signatories, therefore, do not appear in front of the Escrow Agent for the releasing of a.m. funds for proper identification, the Escrow Agent will be provided by telefax or email with valid passport copies of the a.m. signatories; or
|
ii. |
an original or certified copy of an arbitration award determining the disposition of the Security Amount or the part of the Security Amount (the "
Arbitration Award
"). The tribunal appointed to adjudicate the disputes arising out of the MoA shall have full authority and jurisdiction to make an order regarding the determination of the disposition of the Security Amount; or
|
iii. |
an original or certified copy of a final and unappealable court order determining the disposition of the Security Amount (the
"Court Order
"); regardless of any extensions of time limits for appeals, which any court may be empowered to grant,
|
6. |
Duly authorised Attorneys-in-Fact of the Grantor are any one of:
|
1. |
Mr Jochen Klösges,
|
2. |
Ms Anke Hennings,
|
3. |
Mr. Erik Kruse,
|
4. |
Mr. Willem Dekker,
|
5. |
Dr. Ulrich Stahl
|
6. |
Dr. Heinrich-Werner Goltz,
|
7. |
Mr. Edward Maguin,
|
8. |
Dr. Dieter Armbrust,
|
9. |
Dr. Sarah Gahlen.
|
7. |
Duly authorised Attorneys-in-Fact of Seanergy are any one of:
|
1. |
Mr. Stamatios Tsantanis,
|
2. |
Ms. Theodora Mitropetrou,
|
3. |
Mr. Christos Sigalas,
|
4. |
Ms. Maria Moschopoulou,
|
5. |
Dr. Christian Finnern,
|
6. |
Mr. Tobias Weise,
|
7. |
Mr. Christian Hermanussen,
|
8. |
Mr. Yilmaz Ata.
|
8. |
All banking costs (fees and charges, including for the avoidance of doubt, any fees charged by the Escrow Agent's a. m. bank) for opening and closing the Escrow Account and for making any payments to or from the Escrow Account shall be borne by the Grantor. The Grantor shall ensure that the Security Amount is paid into the Escrow Account net of any banking charges.
|
9. |
The parties shall jointly and severally indemnify and keep indemnified the Escrow Agent from and against:
|
a. |
all income, corporation, withholding and such other taxes and similar deductions payable by the Escrow Agent in respect of it agreeing to hold the Funds in escrow; and
|
b. |
all costs, charges and expenses reasonably incurred by the Escrow Agent by any action other than covered by the fee agreed in Clause 10. below (including, without limitation, in connection with any dispute which may arise between the Grantor and the Seanergy as to the payment of the Security Amount and/or the ownership thereof).
|
c. |
all actions, proceedings, claims, demands and liabilities, which the Escrow Agent may suffer or incur in connection with the performance of its obligations under this Agreement, except any arising out of its fraud, wilful default or gross negligence.
|
10. |
The Escrow Agent's fee for opening, holding and closing the Escrow Account is EUR 877,50 (which corresponds to a 1.5 fee according to the statutory German Court and Notary Fees Act [
Gerichts- und Notarkostengesetz – GNotKG
] calculated on the value of the Security Amount at the exchange rate applicable on or about the date of this Agreement) plus ancillary charges and plus, where applicable, VAT and is due upon opening of the Escrow Account and shall be borne by the Grantor.
|
11. |
Each Party shall have the right to seek and obtain information from the Escrow Account with regard to the status of the Security Amount and the Escrow Agent shall provide such information as such Party may reasonably require.
|
12. |
This Agreement shall be governed by and will be construed in accordance with the laws of Germany. The courts of Hamburg shall have jurisdiction.
|
__________________________
|
/a/ Stamatios Tsantanis
|
/s/ Jan-Thomas Oskierski
|
Signed by:
Mr.
For and on behalf of the Grantor
|
Signed by:
Mr. Stamatios Tsantanis
for an on behalf of Seanergy
|
Signed by:
Mr. Jan-Thomas Oskierski
|
(1) |
DA PACIFIC MARITIME S.A.
, of 19
th
floor, Banco General Tower, Aquilino De La Guardia Street, Marbella, Panama City, Republic of Panama (the
"Sellers"
);
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (
" Seanergy"
); and
|
(3) |
PARTNER SHIPPING CO.
, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (the
"Buyers"
).
|
(A) |
The Sellers are the registered owners of the
DONG-A ARTEMIS
currently registered under the flag of Panama with IMO number 9597848 (the
"Vessel"
); and
|
(B) |
The Sellers and Seanergy have entered into a "SALEFORM 2012" Memorandum of Agreement dated 28 March 2017 (together with the Addendum no. 1 dated 25 April 2017 and together with any and all other addenda thereto referred to as the
"Agreement"
) for the sale of the Vessel by the Sellers to Seanergy or its guaranteed nominee; and
|
(C) |
Pursuant to the Agreement the Sellers have agreed to advise their full bank account details to the Buyers; and
|
(D) |
The Sellers and Seanergy have agreed pursuant to Clause 8 of the Agreement to sign this Addendum No. 2.
|
A. |
NOMINATION OF THE BUYERS BY SEANERGY
|
B. |
SELLERS' BANK ACCOUNT DETAILS
|
Correspondent Bank:
|
HSBC Bank USA, New York
|
Correspondent Bank SWIFT code:
|
MRMDUS33
|
ABA No.
|
021001088
|
Beneficiary Account name:
|
DVB Group Merchant Bank (Asia) Ltd.
|
Beneficiary SWIFT code:
|
DVKBSGSG
|
Beneficiary Account number
|
000.305.189
|
Reference:
|
For 3040729
|
C. |
PLACE OF CLOSING
|
D. |
SELLERS' AND BUYERS' DOCUMENTATION
|
1) |
A
copy of the
Certificate of Incorporation
of the Buyers, certified as true by the Buyers' Attorney-at-Law.
|
2) |
Original
Good Standing Certificate
of the Buyers and of Seanergy dated no more than 7 (seven) Banking days (as defined in the Agreement) prior to the delivery date showing the Buyers and Seanergy to be in good standing under the laws of the Marshall Islands.
|
3) |
An
original set of written resolutions or minutes of the Board of Directors
of the Buyers approving the purchase of the Vessel in accordance with the provisions of the Agreement, the ratification of the Agreement signed, and authorising their representatives to execute a power of attorney appointing certain person or persons to execute on behalf of the Buyers of,
inter alia
, a protocol of delivery and acceptance, the payment of the purchase price and any other monies payable to the Sellers under the Agreement and any other document required to be executed by the Buyers in respect of taking delivery of the Vessel from the Sellers pursuant to the Agreement, such resolutions to be legalised by Apostille by the Marshall Islands Special Agent in Piraeus, Greece.
|
4) |
A certified copy of the written resolutions or minutes of the Board of Directors of Seanergy approving the nomination of Partner Shipping Co. as Buyers and Seanergy's guarantee for the obligations of Partner Shipping Co. as per A) above.
|
5) |
An
original set of an Officer's Certificate
of the Buyers and of Seanergy certifying the names of all present directors/officers of the Buyers and of Seanergy and attaching copies of all constitutional documents in full force and effect of the Buyers (copies of the Articles of Incorporation and By-Laws together with any amendment thereto up to and including the delivery date) such officer's certificate to be legalised by Apostille by the Marshall Islands Special Agent in Piraeus, Greece.
|
6) |
A
original Power of Attorney
of the Buyers and of Seanergy issued in accordance with the resolutions/minutes referred to under 3) and 4) above authorising the persons signing the documents on their behalf, such power of attorney to be legalised by Apostille by the Marshall Islands Special Agent in Piraeus, Greece.
|
EXECUTED
|
)
|
|
)
|
||
By Yoonseok Moon
|
)
|
/s/ Yoonseok Moon
|
for and on behalf of
|
)
|
|
DA PACIFIC MARITIME S.A.
|
EXECUTED
|
)
|
|
)
|
||
By Stamatios Tsantanis
|
)
|
/s/ Stamatios Tsantanis
|
for and on behalf of
|
)
|
|
SEANERGY MARITIME HOLDINGS CORP.
|
EXECUTED
|
)
|
|
)
|
||
By Stamatios Tsantanis
|
)
|
/s/ Stamatios Tsantanis
|
for and on behalf of
|
)
|
|
PARTNER SHIPPING CO.
|
(1) |
DA PACIFIC MARITIME S.A.
, of 19
th
floor, Banco General Tower, Aquilino De La Guardia Street, Marbella, Panama City, Republic of Panama (the
"Sellers"
);
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (
"Seanergy"
); and
|
(3) |
PARTNER SHIPPING CO.
, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (the
"Buyers"
).
|
(A) |
The Sellers are the registered owners of the
DONG-A ARTEMIS
currently registered under the flag of Panama with IMO number 9597848 (the
"Vessel"
); and
|
(B) |
The Sellers and Seanergy have entered into a "SALEFORM 2012" Memorandum of Agreement dated 28 March 2017 (together with the Addendum no. 1 dated 25 April 2017 and Addendum no.2 dated 15 May 2017 and together with any and all other addenda thereto referred to as the
"Agreement"
) for the sale of the Vessel by the Sellers to the Buyers, being Seanergy's guaranteed nominee;
|
(C) |
Seanergy and the Sellers have entered into an escrow agreement dated 29 March 2017 which has been further acknowledged by Clyde & Co Clasis Singapore Pte. Ltd. being the escrow agent (the "
Escrow Agent
") to hold the sum of US$3,265,000.00 (United States Dollars Three Million Two Hundred and Sixty Five Thousand representing the 10% of the gross Purchase Price of the MOA (the "
Deposit
");
|
(D) |
Pursuant to the Agreement the Sellers have agreed to advise their full bank account details to the Buyers and have further requested from the Buyers that the payment of the 10% Deposit be made to another bank account of Dong-A Tanker Corporation, the beneficial owner of the Vessel.
|
EXECUTED
|
)
|
|
By Kyung won Kang
|
)
|
/s/ Kyung won Kang
|
for and on behalf of
|
)
|
|
DA PACIFIC MARITIME S.A.
|
)
|
EXECUTED
|
)
|
|
By Gordon Mackay Inkson
|
)
|
/s/ Gordon Mackay Inkson
|
for and on behalf of
|
)
|
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
EXECUTED
|
)
|
|
By Gordon Mackay Inkson
|
)
|
/s/ Gordon Mackay Inkson
|
for and on behalf of
|
)
|
|
PARTNER SHIPPING CO.
|
)
|
Clause
|
Page
|
Section 1 Interpretation
|
3
|
1
Definitions and Interpretation
|
3
|
Section 2 The Facility
|
30
|
2
The Facility
|
30
|
3
Purpose
|
31
|
4
Conditions of Utilisation
|
31
|
Section 3 Utilisation
|
33
|
5
Utilisation
|
33
|
Section 4 Repayment, Prepayment and Cancellation
|
36
|
6
Repayment
|
36
|
7
Prepayment and Cancellation
|
37
|
Section 5 Costs of Utilisation
|
41
|
8
Interest
|
41
|
9
Interest Periods
|
42
|
10
Changes to the Calculation of Interest
|
43
|
11
Fees
|
44
|
Section 6 Additional Payment Obligations
|
46
|
12
Tax Gross Up and Indemnities
|
46
|
13
Increased Costs
|
50
|
14
Other Indemnities
|
52
|
15
Mitigation by the Finance Parties
|
54
|
16
Costs and Expenses
|
55
|
Section 7 Guarantee
|
56
|
17
Guarantee and Indemnity - Corporate Guarantor
|
56
|
18
Joint and Several Liability of the Borrowers
|
58
|
Section 8 Representations, Undertakings and Events of Default
|
61
|
19
Representations
|
61
|
20
Information Undertakings
|
67
|
21
Financial Covenants
|
70
|
22
General Undertakings
|
71
|
23
Insurance Undertakings
|
77
|
24
General Ship Undertakings
|
82
|
25
Security Cover
|
87
|
26
Accounts and application of Earnings
|
88
|
27
Events of Default
|
90
|
Section 9 Changes to Parties
|
95
|
28
Changes to the Lenders
|
95
|
29
Changes to the Transaction Obligors
|
99
|
Section 10 The Finance Parties
|
101
|
30
The Facility Agent, the Arranger and the Reference Banks
|
101
|
31
The Security Agent
|
111
|
32
Conduct of Business by the Finance Parties
|
125
|
33
Sharing among the Finance Parties
|
125
|
Section 11 Administration
|
128
|
34
Payment Mechanics
|
128
|
35
Set-Off
|
131
|
36
Bail-In
|
131
|
37
Notices
|
131
|
38
Calculations and Certificates
|
133
|
39
Partial Invalidity
|
133
|
40
Remedies and Waivers
|
134
|
41
Settlement or Discharge Conditional
|
134
|
42
Irrevocable Payment
|
134
|
43
Amendments and Waivers
|
134
|
44
Confidential Information
|
136
|
45
Confidentiality of Funding Rates and Reference Bank Quotations
|
140
|
46
Counterparts
|
141
|
Section 12 Governing Law and Enforcement
|
142
|
47
Governing Law
|
142
|
48
Enforcement
|
142
|
Schedules
|
|
Schedule 1 The Parties
|
143
|
Part A The Obligors
|
143
|
Part B The Original Lenders
|
144
|
Part C The Servicing Parties
|
145
|
Schedule 2 Conditions Precedent
|
146
|
Part A Conditions Precedent to Each Utilisation Request
|
146
|
Part B Conditions Precedent to the Utilisation of A Tranche
|
148
|
Part C Conditions Precedent to the Utilisation of the Second Advance of Tranche A
|
150
|
Schedule 3 Requests
|
151
|
Part A Utilisation Request
|
151
|
Part B Selection Notice
|
152
|
Schedule 4 Form of Transfer Certificate
|
153
|
Schedule 5 Form of Assignment Agreement
|
155
|
Schedule 6 Form of Compliance Certificate
|
158
|
Schedule 7 Details of the Ships
|
159
|
Schedule 8 Timetables
|
160
|
Schedule 9 Vessel Report
|
161
|
Execution
|
|
Execution Pages
|
162
|
(1) |
PARTNER SHIPPING CO.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH 96960, Marshall Islands as a borrower ("
Borrower A
");
|
(2) |
CHAMPION OCEAN NAVIGATION CO.
, a corporation incorporated in the Republic of Liberia whose registered office is at 80 Broad Street, Monrovia, Liberia as a borrower ("
Borrower B
" and together with Borrower A, the "
Borrowers
" and each, a "
Borrower
");
|
(3) |
SEANERGY MARITIME HOLDINGS CORP.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH 96960, Marshall Islands as corporate guarantor (the "
Corporate Guarantor
");
|
(4) |
AMSTERDAM TRADE BANK N.V.
as arranger (the "
Arranger
");
|
(5) |
THE FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as lenders (the "
Original Lenders
");
|
(6) |
AMSTERDAM TRADE BANK N.V.
as agent of the other Finance Parties (the "
Facility Agent
"); and
|
(7) |
AMSTERDAM TRADE BANK N.V.
as security agent for the Secured Parties (the "
Security Agent
").
|
(A) |
By a facility agreement dated 24 May 2017 and made between (i) Borrower A, (ii) the Corporate Guarantor, (iii) the Arranger, (iv) the Original Lenders, (v) the Facility Agent and (vi) the Security Agent, the Lenders agreed to make available to Borrower A a facility of up to $18,000,000 in up to two advances for the purpose of (inter alia) financing Ship A by way of a loan in a principal amount not exceeding:
|
(i) |
if Ship A is employed under a Qualifying Charter, the lower of (a) 60 per cent. of the Market Value of Ship A and (b) $18,000,000; or
|
(ii) |
if Ship A is not employed under a Qualifying Charter, the lower of (a) 45 per cent. of the Market Value of Ship A and (b) $13,250,000.
|
(B) |
By the Deed of Accession, Amendment and Restatement, the Finance Parties agreed to certain amendments to the facility agreement and the other Finance Documents including, without limitation, the following:
|
(i) |
Borrower B adhering to and becoming a party to (inter alia) the Facility Agreement and assuming Borrower A's obligations and liabilities thereunder on a joint and several basis; and
|
(ii) |
increasing the facility amount by making available to the Borrowers a further tranche in a single amount not exceeding the lesser of (a) $16,500,000 and (b) 60 per cent. of the Initial Market Value of Ship B.
|
(C) |
This Agreement sets out the terms and conditions of the facility agreement as amended and restated by the Deed of Accession, Amendment and Restatement.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
in relation to Borrower A:
|
(i) |
the document creating Security over the Operating Account and the DD Reserve Account of Borrower A dated 24 May 2017 and made between (i) Borrower A and (ii) the Security Agent as amended and/or supplemented by the Deed of Accession, Amendment and Restatement; and
|
(ii) |
any other document creating Security over any Account of Borrower A made or to be made between (i) Borrower A and (ii) the Security Agent; and
|
(b) |
in relation to Borrower B, a document creating Security over any Account of Borrower B, in agreed form
|
(a) |
in relation to Tranche A, the period from and including the date of this Agreement to and including 11 August 2017; and
|
(b) |
in relation to Tranche B, the period from and including the date of the Deed of Accession, Amendment and Restatement to and including 15 October 2017.
|
(a) |
the amount of its participation in the outstanding Loan; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
(a) |
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in the Loan or an Unpaid Sum to the last day of the current Interest Period in relation to the Loan, the relevant part of the Loan or that Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a) |
in relation to Ship A:
|
(i) |
the assignment dated 22 June 2017 creating Security over the Qualifying Charter related to Ship A as amended and/or supplemented pursuant to the Deed of Accession Amendment and Restatement; or
|
(ii) |
any other assignment creating Security over any Charter related to Ship A which exceeds 13 Months (without taking into account any optimal extensions), in agreed form;
|
(b) |
in relation to Ship B, the assignment creating Security over any Charter related to Ship B which is for a term which exceeds 13 Months (without taking into account any optional extensions), in agreed form,
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part B of Schedule 1 (
The Parties
) and the amount of any other Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a) |
any Transaction Obligor or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Transaction Obligor or any of its advisers,
|
(i) |
information that:
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 (
Confidential Information
); or
|
(B) |
is identified in writing at the time of delivery as non-confidential by any Transaction Obligor or any of its advisers; or
|
(C) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected
|
(ii) |
any Funding Rate or Reference Bank Quotation.
|
(a) |
an account in the name of that Borrower with the Account Bank designated "[
name of Borrower
] - DD Reserve Account"; or
|
(b) |
any other account in the name of that Borrower with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a) above, irrespective of the number or designation of such replacement account; or
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties or, if applicable, any Transaction Obligor; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party or, if applicable, any Transaction Obligor preventing that, or any other, Party or, if applicable, any Transaction Obligor:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents,
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled or shared with any other person:
|
(i) |
all freight, hire and passage moneys including, without limitation, all moneys payable under, arising out of or in connection with a Charter or a Charter Guarantee;
|
(ii) |
the proceeds of the exercise of any lien on sub-freights;
|
(iii) |
compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire or use;
|
(iv) |
remuneration for salvage and towage services;
|
(v) |
demurrage and detention moneys;
|
(vi) |
without prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
(vii) |
all moneys which are at any time payable under any Insurances in relation to loss of hire;
|
(viii) |
all monies which are at any time payable to a Borrower in relation to general average contribution; and
|
(b) |
if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (viii) of paragraph (a) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.
|
(a) |
adding back Net Interest Expense;
|
(b) |
adding back depreciation and amortisation;
|
(c) |
adding back any non-cash expenses and non-cash losses;
|
(d) |
deducting any non-cash income and non-cash gains;
|
(e) |
taking no account of any exceptional or extraordinary item;
|
(f) |
taking no account of any revaluation of an asset or any loss or gain over book value arising on the disposal of an asset by a member of the Group during that Rolling Period; and
|
(g) |
adding back the expenses of the special and intermediate surveys, in case these expenses are not capitalized,
|
(a) |
any release, emission, spill or discharge into a Ship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from that Ship; or
|
(b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than either Ship and which involves a collision between either Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from a Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
(a) |
the respective Minimum Liquidity Amount; and
|
(b) |
$500,000.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(a) |
this Agreement;
|
(b) |
the Deed of Accession, Amendment and Restatement;
|
(c) |
any Fee Letter;
|
(d) |
each Utilisation Request;
|
(e) |
any Security Document;
|
(f) |
the Intercreditor Agreement;
|
(g) |
the Intercreditor Deed of Accession, Amendment and Restatement;
|
(h) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
(i) |
any other document designated as such by the Facility Agent and the Borrowers.
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
in relation to Ship A, the general assignment creating Security over Ship A's Earnings, its Insurances and any Requisition Compensation dated 31 May 2017 as amended and/or supplemented pursuant to the Deed of Accession, Amendment and Restatement;
|
(b) |
in relation to Ship B, the general assignment creating Security over Ship B's Earnings, its Insurances and any Requisition Compensation in agreed form,
|
(a) |
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that Ship, that Ship's Earnings or otherwise in relation to that Ship whether before, on or after the date of this Agreement; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium and any rights in relation to any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan,
|
(a) |
the guarantee dated 24 May 2017 and executed by Borrower A in favour of the Shareholder as amended and restated or to be amended and restated by the Junior Deed of Amendment and Restatement in respect of the Corporate Guarantor's obligations under the Junior Amended and Restated Loan Agreement;
|
(b) |
the second priority mortgage on Ship A dated 31 May 2017 and executed by Borrower A in favour of the Shareholder as amended and supplemented or to be amended and supplemented by an addendum No. 1 thereto made or to be made between Borrower A and the Shareholder;
|
(c) |
the second priority general assignment of the Earnings, Insurances and any Requisition Compensation in respect of Ship A dated 31 May 2017 and executed by Borrower A in favour of the Shareholder as amended and restated or to be amended and restated by the Junior Deed of Amendment and Restatement;
|
(d) |
the guarantee executed or to be executed by Borrower B in favour of the Shareholder in respect of the Corporate Guarantor's obligations under the Junior Amended and Restated Loan Agreement;
|
(e) |
the second priority mortgage on Ship B executed or to be executed by Borrower B owning that Ship in favour of the Shareholder; and
|
(f) |
the second priority general assignment of the Earnings, Insurances and any Requisition Compensation in respect of Ship B executed or to be executed by Borrower B in favour of the Shareholder.
|
(a) |
any Original Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 28 (
Changes to the Lenders
),
|
(a) |
the applicable Screen Rate
as of the Specified Time for dollars and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or
|
(b) |
as otherwise determined pursuant to Clause 10.1 (
Unavailability of Screen Rate
),
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ per cent. of the Loan immediately before such repayment.
|
(a) |
as at a date not more than 14 days previously;
|
(b) |
by an Approved Broker (one of which is appointed by the Facility Agent);
|
(c) |
with or without physical inspection of that Ship or vessel (as the Facility Agent may require); and
|
(d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any charter,
|
(e) |
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale,
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Obligor or the Obligors as a whole; or
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a) |
in relation to Ship A, the first preferred Marshall Islands mortgage on that Ship dated 31 May 2017 executed by Borrower A in favour of the Security Agent (the "
Original Mortgage
"), as amended and supplemented by the Mortgage Addendum;
|
(b) |
in relation to Ship B, a first priority, or as the case may be, preferred ship mortgage on that Ship to be executed by Borrower B in favour of the Security Agent and, if required by the laws of the relevant Approved Flag, the deed of covenant collateral to the mortgage in agreed form,
|
(a) |
an account in the name of that Borrower with the Account Bank designated "[
name of Borrower
] -Operating Account";
|
(b) |
any other account in the name of that Borrower with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above.
|
(a) |
a Qualifying Charter; or
|
(b) |
any other Charter:
|
(i) |
which is a time, voyage or consecutive voyage charter;
|
(ii) |
the duration of which does not exceed 13 Months plus a redelivery allowance of not more than 30 days;
|
(iii) |
which is entered into on
bona fide
arm's length terms at the time at which that Ship is fixed; and
|
(iv) |
in relation to which not more than two Months' hire is payable in advance,
|
(a) |
any Financial Indebtedness incurred under the Finance Documents;
|
(b) |
in respect of Borrower B, until the Utilisation Date of Tranche B, the Existing Indebtedness;
|
(c) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents pursuant to the Intercreditor Agreement.
|
(a) |
until the Utilisation Date of Tranche B, any Existing Security in respect of the Existing Indebtedness;
|
(b) |
Security created by the Finance Documents;
|
(c) |
Security created by the Junior Finance Documents and subordinated pursuant to the Intercreditor Agreement;
|
(d) |
any netting or set-off arrangement entered into by any Transaction Obligor in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
|
(e) |
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice;
|
(f) |
liens for salvage;
|
(g) |
liens for master's disbursements incurred in the ordinary course of trading;
|
(h) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of either Ship and not as a result of any default or omission by either Borrower, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 24.15 (
Restrictions on chartering, appointment of managers etc.
);
|
(i) |
Security arising by operation of law in respect of Taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made;
|
(j) |
any Security created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where a Borrower is actively prosecuting or defending such proceedings or arbitration in good faith; and
|
(k) |
any Security arising under Article 24 or 26 of the general terms and conditions (
Algemene Bank Voorwaarden
) of any member of the Dutch Bankers' Association (
Nederlandse Vereniging van Banken
) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions.
|
(a) |
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in dollars for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or,
|
(b) |
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator.
|
(a) |
its jurisdiction of incorporation;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a) |
any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected (whether
de jure
or
de facto
) by any government or official authority or by any person or persons claiming to be or to represent a government or official authority; and
|
(b) |
any capture or seizure of that Ship (including any hijacking or theft) by any person whatsoever.
|
(a) |
imposed by law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council or the United States of America regardless of whether the same is or is not binding on any Transaction Obligor; or
|
(b) |
otherwise imposed by any law or regulation binding on a Transaction Obligor or to which a Transaction Obligor is subject (which shall include without limitation, any extra-territorial sanctions imposed by law or regulation of the United States of America).
|
(a) |
any Share Security;
|
(b) |
any Mortgage;
|
(c) |
any General Assignment;
|
(d) |
any Charter Assignment;
|
(e) |
any Account Security;
|
(f) |
any Manager's Undertaking;
|
(g) |
any other document (whether or not it creates Security) which is executed by the Borrowers (or either of them) and/or the Corporate Guarantor as security for the Secured Liabilities; or
|
(h) |
any other document agreed to be designated as such by the Facility Agent and the Borrowers.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a) |
in relation to Borrower A, the document creating Security over the share capital of that Borrower dated 24 May 2017 as from time to time amended and/or supplemented or any other document creating Security over the share capital of that Borrower, in agreed form;
|
(b) |
in relation to Borrower B, a document creating Security over the share capital of that Borrower in agreed form; and
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
|
(b) |
any Requisition of that Ship unless that Ship is returned to the full control of the Borrower owning that Ship within 30 days of such Requisition.
|
(a) |
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and
|
(c) |
in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a) |
a Finance Document;
|
(b) |
the MOA;
|
(c) |
any Charter exceeding 13 Months without taking into account optional extensions (including, without limitation, the Qualifying Charter in relation to Ship A); or
|
(d) |
any other document designated as such by the Facility Agent and a Borrower.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "
Account
Bank
", the "
Arranger
", the "
Facility
Agent
", any "
Finance
Party
", any "
Lender
", any "
Obligor
", any "
Party
", any "
Secured
Party
", the "
Security
Agent
", any "
Transaction
Obligor
" or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;
|
(ii) |
"
assets
" includes present and future properties, revenues and rights of every description;
|
(iii) |
a liability which is "
contingent
" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv) |
"
document
" includes a deed and also a letter;
|
(v) |
"
expense
" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi) |
a "
Finance Document
", a "
Security Document
" or "
Transaction Document
" or any other agreement or instrument is a reference to that Finance Document, Security Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(vii) |
"
indebtedness
" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(viii) |
"
law
" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix) |
"
proceedings
" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x) |
a "
person
" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
(xi) |
a "
regulation
" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(xii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii) |
a time of day is a reference to London time;
|
(xiv) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xv) |
words denoting the singular number shall include the plural and vice versa; and
|
(xvi) |
"
including
" and "
in
particular
" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b) |
The determination of the extent to which a rate is "
for a period equal in length
" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
(c) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(d) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(e) |
A Potential Event of Default is "
continuing
" if it has not been remedied or waived and an Event of Default is "
continuing
" if it has not been waived.
|
1.3 |
Construction of insurance terms
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by each Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between each Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where Clause 43.2 (
All Lender matters
) applies, all the Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "
Third Parties Act
") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Subject to Clause 43.3 (
Other exceptions
) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c) |
Any Affiliate, Receiver, Delegate or any other person described in paragraph (d) of Clause 14.2 (
Other indemnities
) , paragraph (b) of Clause 30.11 (
Exclusion of liability
), Clause 30.21 (
Role of Reference Banks
), Clause 30.22 (
Third Party Reference Banks
) or paragraph (b) of Clause 31.11 (
Exclusion of liability
)
may, subject to this Clause 1.5 (
Third party rights
) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2 |
THE FACILITY
|
2.1 |
The Facility
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from a Transaction Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by a Transaction Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Transaction Obligor.
|
(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
2.3 |
Borrowers' Agent
|
(a) |
Each Borrower by its execution of this Agreement irrevocably appoints the Corporate Guarantor to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
|
(i) |
the Corporate Guarantor on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including each Utilisation Request), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by either Borrower notwithstanding that they may affect that Borrower, without further reference to or the consent of that Borrower; and
|
(ii) |
each Finance Party to give any notice, demand or other communication to that Borrower pursuant to the Finance Documents to the Corporate Guarantor,
|
(b) |
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Corporate Guarantor or given to the Corporate Guarantor under any Finance Document on behalf of a Borrower or in connection with any Finance Document (whether or not known to either Borrower) shall
|
3 |
PURPOSE
|
3.1 |
Purpose
|
(a) |
in the case of Tranche A:
|
(i) |
first, the Applicable Financing Amount A shall be applied towards part-financing the acquisition of Ship A;
|
(ii) |
secondly, an amount of $500,000 shall be credited to the Operating Account of Borrower A to assist the Borrowers in complying with the requirements of Clause 21 (
Financial Covenants
); and
|
(iii) |
thirdly, a further amount of $500,000 shall be credited to the Operating Account of Borrower A to be applied towards payment of (i) expenses reasonably incurred (and evidenced, if required by the Lenders, to the satisfaction of the Lenders) in the day-to-day running of Ship A and (ii) amounts payable by the Borrowers pursuant to Clauses 6.1 (
Repayment of Loan
) and 8 (
Interest
); and
|
(b) |
in the case of Tranche B towards refinancing part of the Existing Indebtedness;
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
on the date of each Utilisation Request and on each proposed Utilisation Date and before the relevant Advance is made available:
|
(i) |
no Default is continuing or would result from the utilisation of the proposed Advance;
|
(ii) |
the representations made by each Transaction Obligor in Clause 19 (
Representations
) are true;
|
(iii) |
neither Ship has been sold or become a Total Loss; and
|
(b) |
in the case each Advance, the Facility Agent has received on or before the relevant Utilisation Date, or is satisfied it will receive when that Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (
Conditions Precedent
) in form and substance satisfactory to the Facility Agent;
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Facility Agent shall notify the Borrowers and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2 (
Further conditions precedent
).
|
(b) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.4 |
Waiver of conditions precedent
|
5 |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
(a) |
The Borrowers may utilise the Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b) |
The Borrowers may not deliver more than:
|
(i) |
two Utilisation Requests in respect of Tranche A; and
|
(ii) |
one Utilisation Request in respect of Tranche B; and
|
(c) |
The Borrowers may not deliver a Utilisation Request if, as a result of the proposed Utilisation, more than, in the case of Tranche A, 2 Advances and, in the case of Tranche B, 1 Advance would have been made.
|
5.2 |
Completion of a Utilisation Request
|
(a) |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
the proposed Utilisation Date is a Business Day within the Availability Period;
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and amount
);
|
(iii) |
all applicable deductible items have been completed; and
|
(iv) |
the proposed Interest Period complies with Clause 9 (
Interest Periods
).
|
(b) |
Only one Advance may be requested in each Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in each Utilisation Request must be dollars.
|
(b) |
The amount of Tranche A must be an amount which is no more than:
|
(i) |
if on the Utilisation Date in respect of Tranche A the Ship is subject to a Qualifying Charter, the lower of (i) 60 per cent. of the Initial Market Value of the Ship and (ii) $18,000,000; or
|
(ii) |
if on the Utilisation Date in respect of Tranche A the Ship is not subject to a Qualifying Charter, the lower of (i) 45 per cent. of the Initial Market Value of the Ship and (ii) $13,250,000.
|
(c) |
If the circumstances referred to in Clause 5.3(b)(ii) apply on the Utilisation Date in respect of Tranche A, the Borrower shall be entitled to draw down, subject to, inter alia, the satisfaction of the conditions precedent referred to in Schedule 2, Part C
|
(d) |
The amount of Tranche B must be in an amount of up to the lesser of (i) $16,500,000 and (ii) 60 per cent. of the Initial Market Value of Ship B.
|
(e) |
The amount of the proposed Advance must be an amount which is not more than the Available Facility.
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the relevant Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender's participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before making that Advance.
|
(c) |
The Facility Agent shall notify each Lender of the amount of each Advance and the amount of its participation in that Advance by the Specified Time.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Retentions and payment to third parties
|
(a) |
to deduct from the proceeds of any Advance any fees then payable to the Finance Parties in accordance with Clause 11 (
Fees
), any solicitors fees and disbursements together with any applicable VAT and any other items listed as deductible items in the relevant Utilisation Request and to apply them in payment of the items to which they relate; and
|
(b) |
on each Utilisation Date, to pay to, or for the account of, the Borrowers the balance (after any deduction made in accordance with paragraph (a) above) of the amounts which the Facility Agent receives from the Lenders in respect of the relevant Advance. That payment shall be made in like funds as the Facility Agent received from the Lenders in respect of the relevant Advance.
|
5.7 |
Disbursement of Advance to third party
|
5.8 |
Prepositioning of funds
|
(a) |
agree to pay interest on the amount of the funds so prepositioned at the rate described in Clause 8.1 (
Calculation of interest
) on the basis of successive interest periods of one day and so that interest shall be paid together with the first payment of interest on such Advance
|
(b) |
shall, without duplication, indemnify each Finance Party against any costs, loss or liability it may incur in connection with such arrangement.
|
6 |
REPAYMENT
|
6.1 |
Repayment of Loan
|
(a) |
Save as otherwise repaid or prepaid prior to the date of the Deed of Accession, Amendment and Restatement as stated in paragraph (c) below, Tranche A, by 19 equal consecutive quarterly instalments, each in an amount of $200,000, and, together with the nineteenth final instalment, a balloon instalment in an amount of $13,620,000 (the "
Tranche A
Balloon Instalment
"), the first of which shall be repaid on 27 November 2017 and the final instalment, together with the Tranche A Balloon Instalment, on the Termination Date; and
|
(b) |
Tranche B, by 19 equal consecutive quarterly instalments, of which the first to fourth instalments (inclusive) shall be in the amount of $200,000 each, the fifth to eighth instalments (inclusive) shall be in the amount of $300,000 each, the ninth to nineteenth instalments (inclusive) shall be in the amount of $400,000 each, and, together with the nineteenth final instalment, a balloon instalment in an amount of $10,100,000 (the "
Tranche B
Balloon Instalment
" and together with the Tranche A Balloon Instalment, the "
Balloon Instalments
" and each, a "
Balloon Instalment
"), the first of which shall be repaid on 27 November 2017 and the final instalment, together with the Tranche B Balloon Instalment, on the Termination Date,
|
(c) |
As at the date of the Deed of Accession, Amendment and Restatement, the first instalment of Tranche A in the amount of $200,000 due on 28 August 2017 and an Excess Cash in the amount of $380,000 have already been paid by Borrower A, each on 28 August 2017.
|
6.2 |
Effect of cancellation and prepayment on scheduled repayments
|
(a) |
If a Borrower cancels the whole or any part of any Available Commitment in accordance with Clause 7.5 (
Right of repayment and cancellation in relation to a single Lender
) or if the Available Commitment of any Lender is cancelled under Clause 7.1 (
Illegality
) then the Repayment Instalments falling after that cancellation will be reduced pro rata by the amount of the Available Commitments so cancelled.
|
(b) |
If a Borrower cancels the whole or any part of any Available Commitment in accordance with Clause 7.2 (
Voluntary and automatic cancellation
) or if the whole or part of any Commitment is cancelled pursuant to Clause 5.5 (
Cancellation of Commitments
), the Repayment Instalments for the relevant Tranche for each Repayment Date falling after that cancellation will be reduced pro rata by the amount of the Commitments so cancelled but rounded up to the nearest thousand and the relevant Balloon Instalment will then be reduced by the amount of such rounding up.
|
(c) |
If any part of the Loan is repaid or prepaid in accordance with Clause 7.5 (
Right of repayment and cancellation in relation to a single Lender
) or Clause 7.1 (
Illegality
) then the Repayment Instalments for each Repayment Date falling after that repayment or prepayment will be reduced pro rata by the amount of the Loan repaid or prepaid.
|
(d) |
If any part of the Loan is prepaid in accordance with Clause 7.3 (
Voluntary prepayment of Loan
) or Clause 7.4 (
Mandatory prepayment on sale, Total Loss
) then the amount of the Repayment Instalments for the relevant Tranche for each Repayment Date falling after that
|
6.3 |
Additional Repayments
|
(a) |
On each Repayment Date, any Excess Cash standing to the credit of an Operating Account shall be applied towards reducing the Balloon Instalment relevant to the Tranche which has been used to refinance the Ship whose Operating Account is in credit as specified in this paragraph (a).
|
(b) |
The application of any Excess Cash in accordance with this Clause 6.3 (
Additional Repayments
) may only be made if:
|
(i) |
the amount of an Additional Repayment is at least $10,000 or an integral multiple of that amount; and
|
(ii) |
the aggregate amount of the Additional Repayments previously made and any new Additional Repayment pursuant to this Clause 6.3 (
Additional Repayments
) does not exceed, in the case of Tranche A, $3,600,000 and, in the case of Tranche B, $1,250,000.
|
6.4 |
Termination Date
|
6.5 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b) |
upon the Facility Agent notifying the Borrowers, the Available Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrowers shall prepay that Lender's participation in the Loan on the last day of the Interest Period for the Loan occurring after the Facility Agent has notified the Borrowers or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participation prepaid.
|
7.2 |
Voluntary and automatic cancellation
|
(a) |
The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which Tranche B is made available.
|
7.3 |
Voluntary prepayment of Loan
|
(a) |
Subject to paragraph (b) below, the Borrowers may, if they give the Facility Agent not less than 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of $100,000 or an integral multiple of that amount).
|
(b) |
The Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the Available Facility is zero).
|
(c) |
Any partial prepayment under this Clause 7.3 (
Voluntary prepayment of Loan
) shall be applied towards prepayment of the Tranche specified in the relevant prepayment notice first in prepaying the relevant Balloon Instalment and thereafter against the outstanding Repayment Instalments of that Tranche in inverse order of maturity.
|
7.4 |
Mandatory prepayment on sale, Total Loss or non-compliance with Facility Agent's Unacceptable Countries List
|
(a) |
If a Ship is sold or becomes a Total Loss, the Borrowers shall on the Relevant Date prepay the Relevant Amount.
|
(b) |
If, in the Facility Agent's opinion, a Borrower not in compliance with the Facility Agent's Unacceptable Countries List as regards any Additional Unacceptable Country, the Borrowers shall, on the Facility Agent's demand, prepay the Loan.
|
(1) |
the whole of the Tranche relative to such Ship which has been sold or has become a Total Loss; and
|
(2) |
such amount of the Loan which, after giving credit for the amount of the prepayment made pursuant to this Clause 7.4 (
Mandatory prepayment on sale, Total Loss or non-compliance with Facility Agent's Unacceptable Countries List
), results in the Security Cover Ratio being equal to the security cover required to be maintained in Clause 25.1 (
Minimum required security cover
).
|
(i) |
in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and
|
(ii) |
in the case of a Total Loss of a Ship, on the earlier of:
|
(A) |
the date falling 180 days after the Total Loss Date; and
|
(B) |
the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.5 |
Right of repayment and cancellation in relation to a single Lender
|
(a) |
If:
|
(i) |
any sum payable to any Lender by a Transaction Obligor is required to be increased under paragraph (c) of Clause 12.2 (
Tax gross-up
) or under that clause as incorporated by reference or in full in any other Finance Document; or
|
(ii) |
any Lender claims indemnification from a Borrower under Clause 12.3 (
Tax indemnity
) or Clause 13.1 (
Increased costs
); or
|
(iii) |
the Facility Agent receives notification from a Relevant Lender under Clause 10.3 (
Market disruption
),
|
(A) |
whilst in the case of sub-paragraphs (i) and (ii) above the circumstance giving rise to the requirement for that increase or indemnification continues; or
|
(B) |
whilst in the case of sub-paragraph (iii) above the situation in relation to the Relevant Lender continues,
|
(b) |
On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
(c) |
On the last day of each Interest Period which ends after the Borrowers have given notice of cancellation under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrowers in that notice), the Borrowers shall repay that Lender's participation in the Loan.
|
7.6 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (
Prepayment and Cancellation
) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made, the amount of that cancellation or prepayment and, if relevant, the part of the Loan to be prepaid or cancelled.
|
(b) |
Any prepayment or cancellation (whether voluntary or automatic) under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to the fee provided for in Clause 11.4 (
Prepayment fee
) and any Break Costs, without premium or penalty.
|
(c) |
Neither Borrower may reborrow any part of the Facility which is prepaid.
|
(d) |
Neither Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (
Prepayment and Cancellation
) it shall promptly forward a copy of that notice to either the Borrowers or the affected Lenders, as appropriate.
|
(g) |
If all or part of any Lender's participation in the Loan is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
|
7.7 |
Application of prepayments
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
(a) |
the Margin; and
|
(b) |
LIBOR.
|
8.2 |
Payment of interest
|
(a) |
The Borrowers shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period (each an "
Interest
Payment
Date
").
|
(b) |
If an Interest Period is longer than 3 Months, the Borrowers shall also pay interest then accrued on the Loan or the relevant part of the Loan on the dates falling at 3 Monthly intervals after the first day of the Interest Period.
|
8.3 |
Default interest
|
(a) |
If a Transaction Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 2 per cent. per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent. Any interest accruing under this Clause 8.3 (
Default interest
) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b) |
If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan or that part of the Loan:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or that part of the Loan; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2 per cent. per annum higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4 |
Notification of rates of interest
|
(a) |
The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
|
(b) |
The Facility Agent shall promptly notify the Borrowers of each Funding Rate relating to the Loan, any part of the Loan or any Unpaid Sum.
|
9 |
INTEREST PERIODS
|
9.1 |
Selection of Interest Periods
|
(a) |
The Borrowers may select the first Interest Period for a Tranche in the Utilisation Request for that Tranche. Subject to paragraphs (f) and (i) below and Clause 9.2 (
Changes to Interest Periods
), the Borrowers may select each subsequent Interest Period in respect of a Tranche in a Selection Notice.
|
(b) |
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrowers not later than the Specified Time.
|
(c) |
If the Borrowers fail to select an Interest Period in the first Utilisation Request or fail to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will, subject to paragraphs (f) and (i) below and Clause 9.2 (
Changes to Interest Periods
), be three Months.
|
(d) |
Subject to this Clause 9 (
Interest Periods
), the Borrowers may request an Interest Period of three Months but the length of the Interest period shall be at the sole discretion of the Facility Agent (acting on the instructions of all the Lenders)
Provided that
the Borrowers may select an Interest Period of one Month up to six times per calendar year.
|
(e) |
An Interest Period in respect of the Loan or any part of the Loan shall not extend beyond the Termination Date.
|
(f) |
In respect of a Repayment Instalment, the Borrowers may request in the relevant Selection Notice that an Interest Period for a part of the Loan equal to such Repayment Instalment shall end on the Repayment Date relating to it and, subject to paragraph (d) above, select a longer Interest Period for the remaining part of the Loan.
|
(g) |
The first Interest Period for Tranche A shall start on the Utilisation Date for Tranche A and, subject to paragraph (i) below, each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
(h) |
The first interest period for Tranche B shall start on the Utilisation Date of Tranche B and end on 27 November 2017.
|
(i) |
Except for the purposes of paragraph (f) above and Clause 9.2 (
Changes to Interest Periods
), the Loan shall have one Interest Period only at any time.
|
9.2 |
Changes to Interest Periods
|
(a) |
In respect of a Repayment Instalment, prior to determining the interest rate for the Loan, the Facility Agent may establish an Interest Period for a part of the Loan equal to such Repayment Instalment to end on the Repayment Date relating to it and the remaining part of the Loan shall have the Interest Period selected in the relevant Selection Notice, subject to paragraph (d) of Clause 9.1 (
Selection of Interest Periods
).
|
(b) |
If the Facility Agent makes any change to an Interest Period referred to in this Clause 9.2 (
Changes to Interest Periods
), it shall promptly notify the Borrowers and the Lenders.
|
9.3 |
Non-Business Days
|
10 |
CHANGES TO THE CALCULATION OF INTEREST
|
10.1 |
Unavailability of Screen Rate
|
(a) |
Interpolated Screen Rate
: If no Screen Rate is available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(b) |
Reference Bank Rate
: If no Screen Rate is available for LIBOR for:
|
(i) |
dollars; or
|
(ii) |
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(c) |
Cost of funds
: If paragraph (b) above applies but no Reference Bank Rate is available for dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause 10.4 (
Cost of funds
) shall apply to the Loan or that part of the Loan for that Interest Period.
|
10.2 |
Calculation of Reference Bank Rate
|
(a) |
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
|
(b) |
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
10.3 |
Market disruption
|
10.4 |
Cost of funds
|
(a) |
If this Clause 10.4 (
Cost of funds
) applies, the rate of interest on the Loan or the relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i) |
the Margin; and
|
(ii) |
the weighted average of the rates notified to the Facility Agent by each Lender as soon as practicable and in any event within 5 Business Days of the first day of that Interest Period (or, if earlier, on the date falling 5 Business Days before the date on which interest is due to be paid in respect of that Interest Period) to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select.
|
(b) |
If this Clause 10.4 (
Cost of funds
) applies and the Facility Agent or the Borrowers so require, the Facility Agent and the Borrowers shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(c) |
Subject to Clause 43.4 (
Replacement of Screen Rate
), any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties.
|
(d) |
If paragraph (e) below does not apply and any rate notified to the Facility Agent under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
(e) |
If this Clause 10.4 (
Cost of funds
) applies pursuant to Clause 10.3 (
Market disruption
) and:
|
(i) |
a Lender's Funding Rate is less than LIBOR; or
|
(ii) |
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above,
|
(f) |
If this Clause 10.4 (
Cost of funds
) applies but any Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.
|
10.5 |
Break Costs
|
(a) |
The Borrowers shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum.
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
11 |
FEES
|
11.1 |
Commitment fee
|
(a) |
The Borrowers shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 2.325 per cent. per annum on that Lender's Available Commitment from time to time for the Availability Period.
|
(b) |
The accrued commitment fee shall be payable on the earlier of (i) the Utilisation Date in respect of Tranche B and (ii) 15 October 2017 and, if cancelled, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
|
(c) |
The commitment fee in respect of Tranche A was paid prior to the date of the Deed of Accession, Amendment and Restatement.
|
11.2 |
Arrangement fee
|
(a) |
The Borrowers shall pay to the Arranger an arrangement fee in respect each Tranche in the amount and at the times agreed in the relevant Fee Letter.
|
(b) |
The arrangement fee in respect of Tranche A was paid prior to date of the Deed of Accession, Amendment and Restatement.
|
11.3 |
Advisory fee
|
(a) |
The Borrower shall pay to the Facility Agent (for its own account) an advisory fee in respect of each Tranche in the amount and at the times agreed in the relevant Fee Letter.
|
(b) |
The advisory fee in respect of Tranche A was paid prior to the date of the Deed of Accession, Amendment and Restatement.
|
11.4 |
Prepayment fee
|
(a) |
Subject to paragraph (c) below, the Borrowers must pay to the Facility Agent for each Lender a prepayment fee on the date of prepayment of all or any part of the Loan.
|
(b) |
The amount of the prepayment fee is:
|
(i) |
if the prepayment occurs on or before the first anniversary of the Utilisation Date for Tranche B, 2 per cent. of the amount prepaid;
|
(ii) |
if the prepayment occurs after the first, but on or before the second, anniversary of the Utilisation Date for Tranche B, 1.50 per cent. of the amount prepaid;
|
(iii) |
if the prepayment occurs after the second, but on or before the third, anniversary of the Utilisation Date for Tranche B, 1 per cent. of the amount prepaid; and
|
(iv) |
if the prepayment occurs after the third, but on or before the fourth, anniversary of the Utilisation Date for Tranche B, 0.50 per cent. of the amount prepaid.
|
(c) |
No prepayment fee shall be payable under this Clause if the prepayment is made under Clause 6.3 (
Additional Repayments
), Clause 7.4 (
Mandatory prepayment on sale, Total Loss
) as a result of a Total Loss of the Ship or Clause 25 (
Security Cover
) or in the case of a full or partial refinancing of the Loan by Original Lenders or any of their Affiliates, associates and partners.
|
12 |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions
|
(a) |
In this Agreement:
|
(b) |
Unless a contrary indication appears, in this Clause 12 (
Tax Gross Up and Indemnities
) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
12.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
The Borrowers shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrowers and that Obligor.
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3 |
Tax indemnity
|
(a) |
The Obligors shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
); or
|
(B) |
relates to a FATCA Deduction required to be made by a Party.
|
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Obligors.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (
Tax indemnity
), notify the Facility Agent.
|
12.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained and utilised that Tax Credit,
|
12.5 |
Stamp taxes
|
12.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "
Supplier
") to any other Finance Party (the "
Recipient
") under a Finance Document, and any Party other than the Recipient (the "
Relevant Party
") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 12.6 (
VAT
) to any Party shall, at any time when that Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be).
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If a Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(i) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(ii) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrowers.
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrowers.
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13 |
INCREASED COSTS
|
13.1 |
Increased costs
|
(a) |
Subject to Clause 13.3 (
Exceptions
), the Borrowers shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(ii) |
compliance with any law or regulation made,
|
(iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.
|
(b) |
In this Agreement:
|
(i) |
"
Basel III
" means:
|
(A) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
(B) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional
|
(C) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(ii) |
"
CRD IV
" means:
|
(A) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012;
|
(B) |
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and
|
(C) |
any other law or regulation which implements Basel III.
|
(iii) |
"
Increased Costs
" means:
|
(A) |
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(B) |
an additional or increased cost; or
|
(C) |
a reduction of any amount due and payable under any Finance Document,
|
13.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.1 (
Increased costs
) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrowers.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 12.3 (
Tax indemnity
) (or would have been compensated for under Clause 12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (
Tax indemnity
) applied);
|
(d) |
compensated for by any payment made pursuant to Clause 14.3 (
Mandatory Cost
); or
|
(e) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
14 |
OTHER INDEMNITIES
|
14.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "
Sum
"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "
First Currency
") in which that Sum is payable into another currency (the "
Second Currency
") for the purpose of:
|
(i) |
making or filing a claim or proof against that Obligor; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
14.2 |
Other indemnities
|
(a) |
Each Obligor shall, on demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by a Transaction Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 33 (
Sharing among the Finance Parties
);
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance requested by the Borrowers in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Secured Party alone); or
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers.
|
(b) |
Each Obligor shall, on demand, indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (
Other indemnities
) an "
Indemnified Person
"), against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, any Ship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii) |
in connection with any Environmental Claim.
|
(d) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (
Other indemnities
) subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
14.3 |
Mandatory Cost
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions),
|
14.4 |
Indemnity to the Facility Agent
|
(a) |
any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:
|
(i) |
investigating any event which it reasonably believes is a Default; or
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
(iii) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; and
|
(b) |
any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 34.11 (
Disruption to Payment Systems etc.
) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
|
14.5 |
Indemnity to the Security Agent
|
(a) |
Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them:
|
(i) |
in relation to or as a result of:
|
(A) |
any failure by a Borrower to comply with its obligations under Clause 16 (
Costs and Expenses
);
|
(B) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(C) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(D) |
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(E) |
any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
(F) |
any action by any Transaction Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
|
(G) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
|
(ii) |
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (
Indemnity to the Security Agent
) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15 |
MITIGATION BY THE FINANCE PARTIES
|
15.1 |
Mitigation
|
(a) |
Each Finance Party shall, in consultation with the Borrowers, take all reasonable but commercially prudent endeavours to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (
Illegality
), Clause 12 (
Tax Gross Up and Indemnities
), Clause 13 (
Increased Costs
) or paragraph (a) of Clause 14.3 (
Mandatory Cost
) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the Finance Documents.
|
15.2 |
Limitation of liability
|
(a) |
Each Obligor shall, on demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (
Mitigation
).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 15.1 (
Mitigation
) if either:
|
(i) |
a Default has occurred and is continuing; or
|
(ii) |
in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16 |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and
|
(b) |
any other Finance Document executed after the date of this Agreement.
|
16.2 |
Amendment costs
|
(a) |
a Transaction Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause 34.9 (
Change of currency
); or
|
(c) |
a Transaction Obligor requests, and the Security Agent agrees to, the release of all or any part of the Security Assets from the Transaction Security,
|
16.3 |
Enforcement and preservation costs
|
17 |
GUARANTEE AND INDEMNITY - CORPORATE GUARANTOR
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by each Transaction Obligor other than the Corporate Guarantor of all such other Transaction Obligor's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever a Transaction Obligor other than the Corporate Guarantor does not pay any amount when due under or in connection with any Finance Document, the Corporate Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Transaction Obligor other than the Corporate Guarantor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Corporate Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (
Guarantee and Indemnity - Corporate Guarantor
) if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2 |
Continuing guarantee
|
17.3 |
Reinstatement
|
17.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Transaction Obligor or other person;
|
(b) |
the release of any other Transaction Obligor or any other person under the terms of any composition or arrangement with any creditor of any Transaction Obligor;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Transaction Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Transaction Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
17.5 |
Immediate recourse
|
17.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Corporate Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold in an interest-bearing suspense account any moneys received from the Corporate Guarantor or on account of the Corporate Guarantor's liability under this Clause 17 (
Guarantee and Indemnity - Corporate Guarantor
).
|
17.7 |
Deferral of Corporate Guarantor's rights
|
(a) |
to be indemnified by a Transaction Obligor;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Transaction Obligor's obligations under the Finance Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d) |
to bring legal or other proceedings for an order requiring any Transaction Obligor to make any payment, or perform any obligation, in respect of which the Corporate Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (
Guarantee and indemnity
);
|
(e) |
to exercise any right of set-off against any Transaction Obligor; and/or
|
(f) |
to claim or prove as a creditor of any Transaction Obligor in competition with any Secured Party.
|
17.8 |
Additional security
|
17.9 |
Applicability of provisions of Guarantee to other Security
|
18 |
JOINT AND SEVERAL LIABILITY OF THE BORROWERS
|
18.1 |
Joint and several liability
|
18.2 |
Waiver of defences
|
(a) |
this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
|
(b) |
any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
|
(c) |
any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document; or
|
(d) |
any time, waiver or consent granted to, or composition with any other Borrower or other person;
|
(e) |
the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(f) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any other Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(g) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any other person;
|
(h) |
any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(i) |
any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
|
(j) |
any insolvency or similar proceedings.
|
18.3 |
Principal Debtor
|
18.4 |
Borrower restrictions
|
(a) |
Subject to paragraph (b) below, during the Security Period neither Borrower shall:
|
(i) |
claim any amount which may be due to it from any other Borrower whether in respect of a payment made under, or matter arising out of, this Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
|
(ii) |
take or enforce any form of security from any other Borrower for such an amount, or in any way seek to have recourse in respect of such an amount against any asset of any other Borrower; or
|
(iii) |
set off such an amount against any sum due from it to any other Borrower; or
|
(iv) |
prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or
|
(v) |
exercise or assert any combination of the foregoing.
|
(b) |
If during the Security Period, the Facility Agent, by notice to a Borrower, requires it to take any action referred to in paragraph (a) above in relation to any other Borrower, that Borrower shall take that action as soon as practicable after receiving the Facility Agent's notice.
|
18.5 |
Deferral of Borrowers' rights
|
(a) |
to be indemnified by any other Borrower; or
|
(b) |
to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents.
|
19 |
REPRESENTATIONS
|
19.1 |
General
|
19.2 |
Status
|
(a) |
Each Borrower is a corporation, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b) |
The Corporate Guarantor is a corporation duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(c) |
It and each Transaction Obligor has the power to own its assets and carry on its business as it is being conducted.
|
19.3 |
Share capital and ownership
|
(a) |
Each Borrower has an authorised share capital of 500 registered and/or bearer shares of no par value, all of which have been issued in registered form and are fully paid.
|
(b) |
The Corporate Guarantor owns one hundred per cent (100%) of the shares in each Borrower.
|
(c) |
The legal title to and beneficial interest in the share capital in each Borrower is held free of any Security or any other claim by the Corporate Guarantor.
|
(d) |
None of the shares in either Borrower is subject to any option to purchase, pre-emption rights or similar rights.
|
19.4 |
Binding obligations
|
19.5 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery create, subject to the Perfection Requirements, the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
Subject to the Perfection Requirements, the Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first ranking priority and is not subject to any prior ranking or
pari passu
ranking security.
|
(d) |
No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.
|
19.6 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
its constitutional documents; or
|
(c) |
any agreement or instrument binding upon it or constitute a default or termination event (however described) under any such agreement or instrument.
|
19.7 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents; and
|
(ii) |
the continuing registration of its Ship under the Approved Flag.
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party.
|
19.8 |
Validity and admissibility in evidence
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
19.9 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its Relevant Jurisdictions.
|
19.10 |
Insolvency
|
(a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.8 (
Insolvency proceedings
); or
|
(b) |
creditors' process described in Clause 27.9 (
Creditors' process
),
|
19.11 |
No filing or stamp taxes
|
19.12 |
Deduction of Tax
|
19.13 |
No default or mandatory prepayment event
|
(a) |
No Event of Default and, on the date of this Agreement and on each Utilisation Date, no Default is continuing or might reasonably be expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b) |
No event has occurred which would give rise to a mandatory prepayment under Clause 7.4 (
Mandatory prepayment on sale, Total Loss
).
|
(c) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or to which its assets are subject.
|
19.14 |
No misleading information
|
(a) |
Any factual information provided by any Transaction Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect.
|
19.15 |
Financial Statements
|
(a) |
The Original Financial Statements were prepared in accordance with GAAP consistently applied.
|
(b) |
The Original Financial Statements give a true and fair view of its financial condition as at the end of the relevant financial year and results of operations during the relevant financial year.
|
(c) |
There has been no material adverse change in its assets, business or financial condition since 31 December 2016.
|
(d) |
Its most recent financial statements delivered pursuant to Clause 20.2 (
Financial statements
):
|
(i) |
have been prepared in accordance with Clause 20.4 (
Requirements as to financial statements
); and
|
(ii) |
give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition as at the end of the relevant financial year and operations during the relevant financial year.
|
(e) |
Since the date of the most recent financial statements delivered pursuant to Clause 20.2 (
Financial statements
) there has been no material adverse change in its business, assets or financial condition.
|
19.16 |
Pari passu ranking
|
19.17 |
No proceedings pending or threatened
|
(a) |
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against it or any other Transaction Obligor.
|
(b) |
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against it or any other Transaction Obligor.
|
19.18 |
Validity and completeness of the Deed of Release
|
(a) |
The Deed of Release constitutes legal, valid, binding and enforceable obligations of the Existing Lender.
|
(b) |
The copies of the Deed of Release delivered to the Facility Agent are true and complete copies.
|
(c) |
No amendments or additions to the Deed of Release have been agreed nor have any rights under the Deed of Release been waived.
|
19.19 |
Valuations
|
(a) |
All information supplied by it or on its behalf to the Approved Brokers for the purposes of a valuation delivered to the Facility Agent in accordance with this Agreement was true and accurate as at the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b) |
It has not omitted to supply any information to the Approved Brokers which, if disclosed, would adversely affect any valuation prepared by the Approved Brokers.
|
(c) |
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect.
|
19.20 |
No breach of laws
|
19.21 |
No Charter
|
19.22 |
Compliance with Environmental Laws
|
19.23 |
No Environmental Claim
|
19.24 |
No Environmental Incident
|
19.25 |
ISM and ISPS Code compliance
|
19.26 |
Taxes paid
|
(a) |
It is not materially overdue in the filing of any Tax returns and it is not overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
19.27 |
Financial Indebtedness
|
19.28 |
Overseas companies
|
19.29 |
Good title to assets
|
19.30 |
Ownership
|
(a) |
Each Borrower is the sole legal and beneficial owner of its Ship, its Earnings and its Insurances.
|
(b) |
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction Security created or intended to be created by such Transaction Obligor.
|
(c) |
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit any transfer of the shares of the Borrowers on creation or enforcement of the security conferred by the Security Documents.
|
19.31 |
Centre of main interests and establishments
|
19.32 |
Place of business
|
19.33 |
No employee or pension arrangements
|
19.34 |
Sanctions
|
(a) |
No Transaction Obligor:
|
(i) |
is a Prohibited Person;
|
(ii) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;
|
(iii) |
owns or controls a Prohibited Person; or
|
(iv) |
has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee.
|
(b) |
No proceeds of any Advance or the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
19.35 |
US Tax Obligor
|
19.36 |
Anti-bribery, anti-corruption and anti-money laundering
|
19.37 |
Validity and completeness of the MOA
|
(a) |
The MOA constitutes legal, valid, binding and enforceable obligations of Borrower A and the Seller respectively.
|
(b) |
The copy of the MOA delivered to the Facility Agent before the date of this Agreement is true and complete copy.
|
(c) |
No amendments or additions to the MOA have been agreed nor have any rights under the MOA been waived other than those disclosed to the Lenders prior to the date of this Agreement.
|
19.38 |
Repetition
|
20 |
INFORMATION UNDERTAKINGS
|
20.1 |
General
|
20.2 |
Financial statements
|
(a) |
as soon as they become available, but in any event within 120 days after the end of each of their respective financial years their respective audited financial statements for that financial year (consolidated in the case of the Corporate Guarantor);
|
(b) |
as soon as the same become available, but in any event within 90 days after the end of each quarter in each of their respective financial years:
|
(i) |
their respective financial statements for that financial quarter; and
|
(ii) |
together with the financial statements referred to in paragraph (b) of this Clause 20.2 (
Financial statements
), a performance report in relation to each Ship in the form set out in Schedule 9 (
Vessel Report
).
|
20.3 |
Compliance Certificate
|
(a) |
The Corporate Guarantor shall supply to the Facility Agent, semi-annually together with the financial statements delivered pursuant to paragraph (b), in the case of the first two financial quarters in each Financial Year and, the financial statements delivered pursuant to paragraph (a) of Clause 20.2 (
Financial statements
), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clauses 21 (
Financial Covenants
) and 25 (
Security Cover
) as at the date as at which those financial statements were drawn up.
|
(b) |
Each Compliance Certificate shall be signed by a director of each Borrower and, if required to be delivered with the financial statements delivered pursuant to paragraph (a) of Clause 20.2 (
Financial statements
).
|
20.4 |
Requirements as to financial statements
|
(a) |
Each set of financial statements delivered by a Borrower or the Corporate Guarantor pursuant to Clause 20.2 (
Financial statements
) shall be certified by a director or officer of the relevant company fairly representing (if unaudited) its financial condition and operations as at the date as at which those financial statements were drawn up.
|
(b) |
Each of the Borrowers and the Corporate Guarantor shall procure that each set of financial statements delivered pursuant to Clause 20.2 (
Financial statements
) is prepared using GAAP.
|
20.5 |
Information: miscellaneous
|
(a) |
all documents dispatched by it to its partners or members (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any Transaction Obligor, and which might, if adversely determined, have a Material Adverse Effect;
|
(c) |
promptly, its constitutional documents where these have been amended or varied;
|
(d) |
promptly, such further information and/or documents regarding:
|
(i) |
each Ship, goods transported on each Ship, its Earnings and its Insurances;
|
(ii) |
the Qualifying Charter;
|
(iii) |
the Security Assets;
|
(iv) |
compliance of the Obligors with the terms of the Finance Documents;
|
(v) |
the financial condition, business and operations of any Transaction Obligor,
|
(e) |
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it or as may be required by any regulatory authority.
|
20.6 |
Notification of Default
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b) |
Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
(c) |
Without prejudice to paragraph (a) of this Clause 20.6 (
Notification of Default
), if either the Borrowers or the Corporate Guarantor becomes aware that it is not in compliance with or (with the giving of any notice by any Finance Party to the Borrowers or the lapse of any grace periods) would not be in compliance with the provisions of Clauses 21 (
Financial Covenants
), 25.1 (
Minimum required security cover
) or 25.2 (
Provision of additional security; prepayment
), the Borrowers shall notify the Facility Agent of such occurrence (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
|
20.7 |
Use of websites
|
(a) |
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "
Website Lenders
") which accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (the "
Designated Website
") if:
|
(i) |
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii) |
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii) |
the information is in a format previously agreed between the relevant Obligor and the Facility Agent.
|
(b) |
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them and the Facility Agent.
|
(c) |
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
(i) |
the Designated Website cannot be accessed due to technical failure;
|
(ii) |
the password specifications for the Designated Website change;
|
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v) |
if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d) |
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the
|
20.8 |
"Know your customer" checks
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of a Transaction Obligor (including, without limitation, a change of ownership of a Transaction Obligor) after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order for that Servicing Party to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
21 |
FINANCIAL COVENANTS
|
21.1 |
Minimum Liquidity
|
(a) |
Borrower A shall maintain a credit balance in its Operating Account of at least $500,000 from the Utilisation Date of Tranche A and at all times thereafter during the Security Period (the "
Minimum Liquidity Amount A"
).
|
(b) |
Borrower B shall maintain a credit balance in its Operating Account of at least:
|
(i) |
on the Utilisation Date of Tranche B, $800,000; and
|
(ii) |
at all times thereafter during the Security Period, $500,000
|
(c) |
The Facility Agent shall have the right to block a payment or transfer of funds if the provisions of paragraph (a) above would be breached following such transfer.
|
21.2 |
Other financial covenants
|
(a) |
from 30 June 2017 and for the remainder of the Security Period, it shall maintain Cash (which, without limitation, shall include the Minimum Liquidity Amounts, the amounts in the DD Reserve Accounts and any contractually committed but undrawn parts of the Notes) in an amount not less than the product of (i) the number of Fleet Vessels and (ii) $500,000; and
|
(b) |
from 30 June 2018 and for the remainder of the Security Period:
|
(i) |
the EBITDA to Net Interest Expense Ratio is at least equal to 2:1; and
|
(ii) |
the Leverage Ratio does not exceed 75 per cent.
|
21.3 |
Testing
|
21.4 |
Financial covenants in other credit agreements
|
22 |
GENERAL UNDERTAKINGS
|
22.1 |
General
|
22.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of,
|
(i) |
perform its obligations under the Transaction Documents to which it is a party;
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the applicable Approved Flag at any time of each Ship, of any Transaction Document to which it is a party; and
|
(iii) |
own and operate each Ship (in the case of the Borrowers).
|
22.3 |
Compliance with laws
|
22.4 |
Environmental compliance
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
22.5 |
Environmental Claims
|
(a) |
any Environmental Claim against any Transaction Obligor which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Transaction Obligor,
|
22.6 |
Taxation
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them and both have been disclosed in its Latest Financial Statements delivered to the Facility Agent under Clause 20.2 (
Financial statements
); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
No Obligor shall change its residence for Tax purposes.
|
22.7 |
Overseas companies
|
22.8 |
No change to centre of main interests
|
22.9 |
Pari passu ranking
|
22.10 |
Title
|
(a) |
Each Borrower shall hold the legal title to, and own the entire beneficial interest in its Ship, its Earnings and its Insurances.
|
(b) |
With effect on and from its creation or intended creation, each Borrower shall hold the legal title to, and own the entire beneficial interest in any other assets the subject of any Transaction Security created or intended to be created by such Obligor.
|
22.11 |
Negative pledge
|
(a) |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, create or permit to subsist any Security over any of its assets which are, in the case of the Transaction Obligors other than the Borrowers, the subject of the Security created or intended to be created by the Finance Documents.
|
(b) |
Neither Borrower shall:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
Paragraphs (a) and (b) above do not apply to any Permitted Security.
|
22.12 |
Disposals
|
(a) |
Neither Borrower shall, enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset (including without limitation either Ship, its Earnings or its Insurances).
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any Charter as all Charters are subject to Clause 24.15 (
Restrictions on chartering, appointment of managers etc.
); or
|
(ii) |
a sale of a Ship provided that the Borrowers comply with the prepayment obligations in Clause 7 (
Prepayment and Cancellation
).
|
22.13 |
Merger
|
22.14 |
Change of business
|
22.15 |
Financial Indebtedness
|
22.16 |
Expenditure
|
22.17 |
Share capital
|
(a) |
increase or reduce its authorised share capital;
|
(b) |
issue any further shares except to the Corporate Guarantor and provided such new shares are made subject to the terms of the Shares Security applicable to that Borrower immediately upon the issue of such new shares in a manner satisfactory to the Facility Agent and the terms of that Shares Security are complied with; or
|
(c) |
appoint any further director or officer of that Borrower (unless the provisions of the Shares Security applicable to that Borrower are complied with).
|
22.18 |
Dividends
|
(a) |
Additional Repayments in an aggregate amount of $4,850,000 have been made (and for the avoidance of doubt, in the case of Tranche A, $3,600,000 and, in the case of Tranche B, $1,250,000); and
|
(b) |
no Default has occurred or would result from the making of any such payment,
|
22.19 |
Other transactions
|
(a) |
be the creditor in respect of any loan or any form of credit to any person;
|
(b) |
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Obligor assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents;
|
(c) |
make any asset acquisitions;
|
(d) |
enter into any material agreement other than:
|
(i) |
the Transaction Documents;
|
(ii) |
any other agreement expressly allowed under any other term of this Agreement; and
|
(e) |
enter into any transaction on terms which are, in any respect, less favourable to that Obligor than those which it could obtain in a bargain made at arms' length; or
|
(f) |
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks.
|
22.20 |
Unlawfulness, invalidity and ranking; Security imperilled
|
(a) |
make it unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents;
|
(b) |
cause any obligation of a Transaction Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable;
|
(c) |
cause any Transaction Document to cease to be in full force and effect;
|
(d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e) |
imperil or jeopardise the Transaction Security.
|
22.21 |
Further assurance
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent, any Receiver or any of the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed by itself or another Transaction Obligor pursuant to this Clause 22.21 (
Further assurance
), that Obligor shall deliver, or shall procure that such other Transaction Obligor will deliver, to the Security Agent reasonable evidence that that Obligor's or Transaction Obligor's execution of such document has been duly authorised by it.
|
22.22 |
NASDAQ listing
|
22.23 |
No variation, release etc. of MOA
|
(a) |
vary the MOA in a material manner without the prior consent of the Facility Agent; or
|
(b) |
release, waive, suspend, subordinate or permit to be lost or impaired any interest or right of any kind which Borrower A has at any time to, in or in connection with, the MOA or in relation to any matter arising out of or in connection with the MOA.
|
22.24 |
Provision of information relating to MOA
|
(a) |
immediately inform the Facility Agent if any breach of the MOA occurs or a serious risk of such a breach arises and of any other event or matter affecting the MOA which has or is reasonably likely to have a Material Adverse Effect; and
|
(b) |
upon the reasonable request of the Facility Agent, keep the Facility Agent informed as to any notice of readiness of delivery of Ship A.
|
22.25 |
No assignment etc. of MOA
|
23 |
INSURANCE UNDERTAKINGS
|
23.1 |
General
|
23.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
war risks;
|
(c) |
protection and indemnity risks; and
|
(d) |
any other risks against which the Facility Agent acting on the instructions of the Majority Lenders considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable for that Borrower to insure and which are specified by the Facility Agent by notice to that Borrower.
|
23.3 |
Terms of obligatory insurances
|
(a) |
in dollars;
|
(b) |
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
|
(i) |
120 per cent. of the Tranche relating to the Ship owned by it; and
|
(ii) |
the Market Value of that Ship;
|
(c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(d) |
in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
|
(e) |
on approved terms; and
|
(f) |
through Approved Insurance Brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
23.4 |
Further protections for the Finance Parties
|
(a) |
subject always to paragraph (b), name that Borrower as the sole named insured unless the interest of every other named insured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b) |
whenever the Facility Agent requires, name (or be amended to name) the Security Agent as additional named insured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(d) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(e) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(f) |
provide that the Security Agent may make proof of loss if that Borrower fails to do so.
|
23.5 |
Renewal of obligatory insurances
|
(a) |
at least 21 days before the expiry of any obligatory insurance:
|
(i) |
notify the Facility Agent of the Approved Insurance Brokers (or other insurers) and any protection and indemnity or war risks association through or with which it proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii) |
obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i) above;
|
(b) |
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval pursuant to paragraph (a) above; and
|
(c) |
procure that the Approved Insurance Brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
|
23.6 |
Copies of policies; letters of undertaking
|
(a) |
pro forma
copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Insurance Brokers that:
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 23.4 (
Further protections for the Finance Parties
);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from the Borrower or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Ship owned by that Borrower forthwith upon being so requested by the Facility Agent.
|
23.7 |
Copies of certificates of entry
|
(a) |
a certified copy of the certificate of entry for that Ship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.
|
23.8 |
Deposit of original policies
|
23.9 |
Payment of premiums
|
23.10 |
Guarantees
|
23.11 |
Compliance with terms of insurances
|
(a) |
Neither Borrower shall do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part.
|
(b) |
Without limiting paragraph (a) above, each Borrower shall:
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 23.6 (
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior approval;
|
(ii) |
not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances;
|
(iii) |
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(iv) |
not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
23.12 |
Alteration to terms of insurances
|
23.13 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
23.14 |
Provision of copies of communications
|
(a) |
the Approved Insurance Brokers;
|
(b) |
the approved protection and indemnity and/or war risks associations; and
|
(c) |
the approved insurance companies and/or underwriters,
|
(i) |
that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii) |
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
23.15 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.16 (
Mortgagee's interest and additional perils insurances
) or dealing with or considering any matters relating to any such insurances,
|
23.16 |
Mortgagee's interest and additional perils insurances
|
(a) |
The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils insurance in an amount of up to 120 per cent. of the Loan, on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b) |
The Borrowers shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
24 |
GENERAL SHIP UNDERTAKINGS
|
24.1 |
General
|
24.2 |
Ship's name and registration
|
(a) |
keep that Ship registered in its name under the applicable Approved Flag from time to time at its port of registration;
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
|
(c) |
not change the name of that Ship, without the prior written consent of the Facility Agent,
|
(i) |
that Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage on that Ship and on such other terms and in such other form as the Facility Agent, acting with the authorisation of the Lenders, shall approve or require; and
|
(ii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of the Lenders, shall approve or require.
|
24.3 |
Repair and classification
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions.
|
24.4 |
Modifications
|
24.5 |
Removal and installation of parts
|
(a) |
Subject to paragraph (b) below, the Borrower shall not remove any material part of the Ship, or any item of equipment installed on the Ship unless:
|
(i) |
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed;
|
(ii) |
the replacement part or item is free from any Security in favour of any person other than the Security Agent; and
|
(iii) |
the replacement part or item becomes, on installation on that Ship, the property of that Borrower and subject to the security constituted by the Mortgage on that Ship.
|
(b) |
A Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that Borrower.
|
24.6 |
Surveys
|
24.7 |
Inspection
|
24.8 |
Prevention of and release from arrest
|
(a) |
Each Borrower shall, in respect of the Ship owned by it, promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;
|
(ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
|
(b) |
Each Borrower shall immediately upon receiving notice of the arrest of the Ship owned by it or of its detention in exercise or purported exercise of any lien or claim, take all steps necessary to procure its release by providing bail or otherwise as the circumstances may require.
|
24.9 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and Sanctions (or which would be contrary to Sanctions if Sanctions were binding on each Obligor).
|
24.10 |
ISPS Code
|
(a) |
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for that Ship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
24.11 |
Sanctions and Ship trading
|
(a) |
that the Ship owned by it shall not be used by or for the benefit of a Prohibited Person;
|
(b) |
that such Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each Obligor);
|
(c) |
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and
|
(d) |
that each charterparty in respect of that Ship shall contain, for the benefit of that Borrower, language which gives effect to the provisions of paragraph (c) of Clause 24.9 (
Compliance with laws etc.
) as regards Sanctions and of this Clause 24.11 (
Sanctions and Ship trading
) and which permits refusal of employment or voyage orders if compliance would result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were binding on each Obligor.
|
24.12 |
Trading in war zones
|
(a) |
the prior written consent of the Security Agent acting on the instructions of the Majority Lenders has been given; and
|
(b) |
that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of the Majority Lenders may require.
|
24.13 |
Provision of information
|
(a) |
that Ship, its employment, position and engagements;
|
(b) |
the Earnings and payments and amounts due to its master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Approved Manager's compliance and the compliance of the Ship with the ISM Code and the ISPS Code,
|
24.14 |
Notification of certain events
|
(a) |
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of that Ship for hire;
|
(d) |
any requirement or recommendation made in relation to that Ship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of that Ship or any exercise or purported exercise of any lien on that Ship or the Earnings;
|
(f) |
any intended dry docking of that Ship;
|
(g) |
any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident;
|
(h) |
any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Manager or otherwise in connection with that Ship; or
|
(i) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
24.15 |
Restrictions on chartering, appointment of managers etc.
|
(a) |
let that Ship on demise charter for any period;
|
(b) |
enter into any time, voyage or consecutive voyage charter in respect of that Ship other than a Permitted Charter;
|
(c) |
amend, supplement or terminate a Management Agreement;
|
(d) |
appoint a manager of that Ship other than the Approved Commercial Manager and the Approved Technical Manager or agree to any alteration to the terms of an Approved Manager's appointment;
|
(e) |
de activate or lay up that Ship; or
|
(f) |
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $500,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.
|
24.16 |
Notice of Mortgage
|
24.17 |
Sharing of Earnings
|
24.18 |
Copies of Charters; charter assignment
|
(a) |
provide promptly to the Facility Agent a true and complete copy of any Charter exceeding 6 Months (including all amendments) for its Ship and all other documents related thereto; and
|
(b) |
in respect of any Charter for a term which exceeds, or which by virtue of any optional extensions may exceed 13 Months, execute and deliver to the Facility Agent a Charter Assignment together with each of the documents required to be delivered pursuant to such Charter Assignment (each in agreed form).
|
24.19 |
Notification of compliance
|
25 |
SECURITY COVER
|
25.1 |
Minimum required security cover
|
(a) |
Clause 25.2 (
Provision of additional security; prepayment
) applies, if on or after the first Utilisation Date, the Facility Agent notifies the Borrowers that:
|
(i) |
the aggregate Market Value of the Ships then subject to a Mortgage; plus
|
(ii) |
the net realisable value of additional Security previously provided under this Clause 25 (
Security Cover
),
|
(b) |
is:
|
(i) |
during the period commencing on the first Utilisation Date and ending on the date falling on the second anniversary of that Utilisation Date, below 145 per cent. of the Loan; and
|
(ii) |
at all times thereafter, below 165 per cent. of the Loan.
|
25.2 |
Provision of additional security; prepayment
|
(a) |
If the Facility Agent serves a notice on the Borrowers under Clause 25.1 (
Minimum required security cover
), the Borrowers shall, on or before the date falling 14 Business Days after the date (the "
Prepayment Date
") on which the Facility Agent's notice is served, prepay such part of the Loan as shall eliminate the shortfall.
|
(b) |
A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders:
|
(i) |
has a net realisable value at least equal to the shortfall; and
|
(ii) |
is documented in such terms as the Facility Agent may approve or require,
|
25.3 |
Value of additional vessel security
|
25.4 |
Valuations binding
|
25.5 |
Provision of information
|
(a) |
Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 25 (
Security Cover
) with any information which the Facility Agent or the shipbroker may request for the purposes of the valuation.
|
(b) |
If a Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on any basis and assumptions which the shipbroker or the Facility Agent considers prudent.
|
25.6 |
Prepayment mechanism
|
25.7 |
Provision of valuations
|
26 |
ACCOUNTS AND APPLICATION OF EARNINGS
|
26.1 |
Accounts
|
(a) |
its Operating Account;
|
(b) |
the DD Reserve Account; and
|
(c) |
in the case of Borrower B, the earnings account in respect of Ship B with the Existing Lender
Provided that
Borrower B shall ensure that such account is closed within 10 Business Days from the date of the Deed of Accession, Amendment and Restatement.
|
26.2 |
Payment of Earnings
|
26.3 |
Application of Earnings
|
(a) |
first, in or towards payment of all expenses reasonably incurred (and evidenced, if required by the Lenders, to the satisfaction of the Lenders) in the usual course of the day-to-day running of the Ships;
|
(b) |
secondly, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the Security Agent under the Finance Documents;
|
(c) |
thirdly, in or towards payment pro rata of the Repayment Instalments due and payable under Clause 6.1 (
Repayment of Loan
) and any accrued interest and principal due but unpaid to the Lenders under this Agreement;
|
(d) |
fourthly, towards payment of any Additional Repayments payable under Clause 6.3 (
Additional Repayments
);
|
(e) |
fifthly, towards any Quarterly Increase to be made under Clause 26.4 (
Transfers to the DD Reserve Accounts
); and
|
(f) |
sixthly, subject to compliance with Clauses 21 (
Financial Covenants
) and 22.18 (
Dividends
) and provided no Default has occurred, to the Borrowers for distribution in accordance with Clause 22.18 (
Dividends
).
|
26.4 |
Transfers to the DD Reserve Accounts
|
(a) |
Each Borrower shall procure that an amount in the case of Borrower A, $35,000 and, in the case of Borrower B, $30,000 is transferred to its DD Reserve Account from its Operating Account (subject to the balance on that Operating Account following such transfer being in excess of the relevant Minimum Liquidity Amount) on each Repayment Date.
|
(b) |
Subject to the other provisions of this Agreement and the other Finance Documents, each Borrower undertakes to use the monies in its DD Reserve Account only towards payment of any planned drydocking and interim survey expenses of the Ship owned by it.
|
(c) |
Each Borrower shall provide the Facility Agent with an invoice or invoices to evidence the amount of the drydocking or interim survey expenses in respect of the Ship owned by it and the relevant amount shall be released from its DD Reserve Account to pay such drydocking or interim survey expenses subject to the Facility Agent's written approval.
|
(d) |
On the Termination Date, all amounts standing to the credit of the DD Reserve Accounts shall be applied towards repayment of the Loan.
|
26.5 |
Shortfall in Earnings
|
(a) |
If the aggregate of the credit balance on each Operating Account is insufficient at any Repayment Date for the required amount to be transferred to each DD Reserve Account under Clause 26.4 (
Transfers to the DD Reserve Accounts
), the Borrowers shall make up the amount of the insufficiency on demand from the Facility Agent.
|
(b) |
Without prejudicing the Facility Agent's right to make such demand at any time, the Facility Agent may, if so authorised by the Majority Lenders, permit the Borrowers to make up all or part of the insufficiency by increasing the amount of any transfer under Clause 26.4 (
Transfers to the DD Reserve Accounts
) from the Earnings received in the next or subsequent calendar months.
|
26.6 |
Location of Accounts
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of its Operating Account and its DD Reserve Account (or either of them); and
|
(b) |
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) its Operating Account and its DD Reserve Account.
|
27 |
EVENTS OF DEFAULT
|
27.1 |
General
|
27.2 |
Non-payment
|
(a) |
its failure to pay is caused by:
|
(i) |
administrative or technical error; or
|
(ii) |
a Disruption Event; and
|
(b) |
payment is made within 3 Business Days of its due date.
|
27.3 |
Specific obligations
|
(a) |
Clause 4.4 (
Waiver of conditions precedent
), 19.34 (
Sanctions
), Clause 21 (
Financial Covenants
), Clause 22.10 (
Title
), Clause 22.11 (
Negative pledge
), Clause 22.20 (
Unlawfulness, invalidity and ranking; Security imperilled
), Clause, 23.2 (
Maintenance of obligatory insurances
), Clause 23.3 (
Terms of obligatory insurances
), Clause 23.5 (
Renewal of obligatory insurances
), Clause 23.11 (
Sanctions and Ship Trading
) or Clause 25 (
Security Cover
); or
|
(b) |
any provision of the Intercreditor Agreement and such breach is occasioned by the Shareholder.
|
27.4 |
Other obligations
|
(a) |
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 27.2 (
Non-payment
) and Clause 27.3 (
Specific obligations
)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 5 Business Days of the Facility Agent giving notice to the Borrowers or (if earlier) any Transaction Obligor becoming aware of the failure to comply.
|
27.5 |
Misrepresentation
|
27.6 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d) |
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 27.6 (
Cross default
) in respect of the Corporate Guarantor if the aggregate amount of Financial Indebtedness (or commitment for any Financial Indebtedness) falling within paragraphs (a) to (d) above is less than $5,000,000 (or its equivalent in any other currency) in aggregate.
|
27.7 |
Insolvency
|
(a) |
A Transaction Obligor:
|
(i) |
is unable or admits inability to pay its debts as they fall due;
|
(ii) |
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
(iii) |
suspends or threatens to suspend making payments on any of its debts; or
|
(iv) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of any Transaction Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c) |
A moratorium is declared in respect of any indebtedness of any Transaction Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
(d) |
No Event of Default will occur under this Clause 26.7 (
Insolvency
) if any of the events described in paragraphs (a)-(c) above occurs in respect of an Approved Manager which is a member of the Group and the Borrowers replace such Approved Manager by another Approved Manager and delivers to the Facility Agent the documents referred to at paragraph 4.3 of Part B (
Conditions Precedent to Utilisation of Tranche A
) of Schedule 2 within 10 Business Days from the date of such occurrence.
|
27.8 |
Insolvency proceedings
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Transaction Obligor;
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor;
|
(iii) |
the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Transaction Obligor or any of its assets; or
|
(iv) |
enforcement of any Security over any assets of any Transaction Obligor,
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
(c) |
No Event of Default will occur under this Clause 26.78 (
Insolvency proceedings
) if any of the events described in paragraph (a) above occurs in respect of an Approved Manager which is a member of the Group and the Borrowers replace such Approved Manager by another Approved Manager and delivers to the Facility Agent the documents referred to at paragraph 4.3 of Part B (
Conditions Precedent to Utilisation of Tranche A
) of Schedule 2 within 10 Business Days from the date of such occurrence.
|
27.9 |
Creditors' process
|
27.10 |
Ownership of the Borrowers and the Corporate Guarantor
|
(a) |
Each Borrower is not or ceases to be a 100 per cent. directly owned Subsidiary of the Corporate Guarantor.
|
(b) |
Persons other than those disclosed to the Facility Agent as part of the "Know your customer" checks gain control of the Corporate Guarantor.
|
(c) |
For the purpose of paragraph (b) above "control" means:
|
(i) |
the power (whether by way of ownership of shares, partnership units, proxy, contract, agency or otherwise) to:
|
(A) |
cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of the Corporate Guarantor; or
|
(B) |
appoint or remove all, or the majority, of the directors or other equivalent officers of the Corporate Guarantor; or
|
(C) |
give directions with respect to the operating and financial policies of the Corporate Guarantor with which the directors or other equivalent officers of the Corporate Guarantor are obliged to comply; and/or
|
(ii) |
the holding beneficially of more than 50 per cent. of the issued shares of the Corporate Guarantor (excluding any part of that issued shares that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
|
27.11 |
Unlawfulness, invalidity and ranking
|
(a) |
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c) |
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
27.12 |
Security imperilled
|
27.13 |
Cessation of business
|
27.14 |
Arrest
|
27.15 |
Expropriation
|
(a) |
an arrest or detention of a Ship referred to in Clause 27.14 (
Arrest
); or
|
(b) |
any Requisition.
|
27.16 |
Repudiation and rescission of agreements
|
27.17 |
Litigation
|
(a) |
has a Material Adverse Effect; or
|
(b) |
is reasonably likely to have a Material Adverse Effect, unless in such case (i) the relevant Transaction Obligor has taken active measures to dispute such proceedings or disputes and such proceedings or disputes are dismissed or withdrawn within 14 days of being made or presented or (ii) in respect of the Corporate Guarantor, the combined value of such proceedings or disputes does not exceed $5,000,000 (or its equivalent in any other currency) in aggregate.
|
27.18 |
Material adverse change
|
27.19 |
Junior Agreement default
|
27.20 |
Acceleration
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable;
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders; and/or
|
(d) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents,
|
27.21 |
Enforcement of security
|
28 |
CHANGES TO THE LENDERS
|
28.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
Conditions of assignment or transfer
|
(a) |
The consent of the Borrowers is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender;
|
(ii) |
if the Existing Lender is a fund, to a fund which is a Related Fund; or
|
(iii) |
made at a time when a Default is continuing.
|
(b) |
The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld or delayed. Each Borrower will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by that Borrower within that time.
|
(c) |
The consent of a Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to any amount payable under Clause 14.3 (
Mandatory Cost
).
|
(d) |
An assignment will only be effective on:
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e) |
Each Obligor on behalf of itself and each Transaction Obligor agrees that all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrower or any other Transaction Obligor had against the Existing Lender.
|
(f) |
A transfer will only be effective if the procedure set out in Clause 28.5 (
Procedure for transfer
) is complied with.
|
(g) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, a Transaction Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (
Tax Gross Up and Indemnities
) or under that clause as incorporated by reference or in full in any other Finance Document or Clause 13 (
Increased Costs
),
|
(h) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
28.3 |
Assignment or transfer fee
|
28.4 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Transaction Obligor;
|
(iii) |
the performance and observance by any Transaction Obligor of its obligations under the Transaction Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Transaction Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 28 (
Changes to the Lenders
); or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Transaction Documents or otherwise.
|
28.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 28.2 (
Conditions of assignment or transfer
), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause 28.9 (
Pro rata interest settlement
), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Transaction Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "
Discharged Rights and Obligations
");
|
(ii) |
each of the Transaction Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Transaction Obligor and the New Lender have assumed and/or acquired the same in place of that Transaction Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent, the Arranger and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
28.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 28.2 (
Conditions of assignment or transfer
) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent
|
(b) |
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c) |
Subject to Clause 28.9 (
Pro rata interest settlement
), on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "
Relevant Obligations
") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 28.6 (
Procedure for assignment
) to assign their rights under the Finance Documents (but not, without the consent of the relevant Transaction Obligor or unless in accordance with Clause 28.5 (
Procedure for transfer
), to obtain a release by that Transaction Obligor from the obligations owed to that Transaction Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that
they comply with the conditions set out in Clause 28.2 (
Conditions of assignment or transfer
).
|
28.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrowers
|
28.8 |
Security over Lenders' rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii) |
require any payments to be made by a Transaction Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
28.9 |
Pro rata interest settlement
|
(a) |
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "
pro rata
basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 28.5 (
Procedure for transfer
) or any assignment pursuant to Clause 28.6 (
Procedure for assignment
) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("
Accrued Amounts
") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(ii) |
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 28.9 (
Pro rata interest settlement
), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b) |
In this Clause 28.9 (
Pro rata interest settlement
) references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
29 |
CHANGES TO THE TRANSACTION OBLIGORS
|
29.1 |
Assignment or transfer by Transaction Obligors
|
29.2 |
Release of security
|
(a) |
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i) |
the disposal is permitted by the terms of any Finance Document;
|
(ii) |
the Majority Lenders/all the Lenders agree to the disposal;
|
(iii) |
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv) |
the disposal is being effected by enforcement of a Security Document,
|
(b) |
If the Security Agent is satisfied that a release is allowed under this Clause 29.2 (
Release of security
) (at the request and expense of the Borrowers) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Transaction Obligor under the Finance Documents.
|
30 |
THE FACILITY AGENT, THE ARRANGER AND THE REFERENCE BANKS
|
30.1 |
Appointment of the Facility Agent
|
(a) |
Each of the Arranger and the Lenders appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each of the Arranger and the Lenders authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
30.2 |
Instructions
|
(a) |
The Facility Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
(b) |
The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 43 (
Amendments and Waivers
), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 30.2 (
Instructions
), in the absence of instructions, the Facility Agent shall not be obliged to take any action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
30.3 |
Duties of the Facility Agent
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause 28.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d) |
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Arranger or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility Agent shall provide to the Borrowers within 10 Business Days of a request by the Borrowers (but no more frequently than once per calendar month), a list (which may be in electronic form) setting out the names of the Lenders as at that Business Day, their respective Commitments, the address (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Facility Agent to that Lender under the Finance Documents.
|
(h) |
The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
30.4 |
Role of the Arranger
|
30.5 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or the Arranger as a trustee or fiduciary of any other person.
|
(b) |
Neither the Facility Agent nor the Arranger shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.6 |
Application of receipts
|
30.7 |
Business with the Transaction Obligors
|
30.8 |
Rights and discretions
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 27.2 (
Non-payment
));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than a Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Transaction Obligors.
|
(c) |
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, the Facility Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
30.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arranger, a Transaction Obligor or any other person in, or in connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; or
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
30.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
30.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 34.11 (
Disruption to Payment Systems etc.
) or any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent or the Arranger to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.
|
30.12 |
Lenders' indemnity to the Facility Agent
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 34.11 (
Disruption to Payment Systems etc.
) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
30.13 |
Resignation of the Facility Agent
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d) |
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent) agree with the proposed successor Facility Agent amendments to this Clause 30 (
The Facility Agent, the Arranger and the Reference Banks
) and any other term of this Agreement dealing with the rights or obligations of the Facility Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Facility Agent's normal fee rates and those amendments will bind the Parties.
|
(e) |
The retiring Facility Agent shall make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents. The Borrowers shall, within three Business Days of demand, reimburse the retiring Facility Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(f) |
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (
Indemnity to the
|
(h) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (e) above shall be for the account of the Borrowers.
|
(i) |
The consent of either Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
30.14 |
Confidentiality
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
30.15 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 28.9 (
Pro rata interest settlement
), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent and any reference to any instructions being given by or sought from any Finance Party or group of Finance Parties by or to the Security Agent in this Agreement must be given or sought through the Facility Agent.
|
(c) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under Clause 37.5 (
Electronic communication
) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 37.2 (
Addresses
) and sub-paragraph (ii) of paragraph (a) of Clause 37.5 (
Electronic communication
) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
30.16 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each Transaction Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
30.17 |
Facility Agent's management time
|
30.18 |
Deduction from amounts payable by the Facility Agent
|
30.19 |
Reliance and engagement letters
|
30.20 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to either Borrower or any person who is a party to, or referred to in, a Finance Document,
|
30.21 |
Role of Reference Banks
|
(a) |
No Reference Bank is under any obligation to provide a quotation or any other information to the Facility Agent.
|
(b) |
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
(c) |
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 30.21 (
Role of Reference Banks
) subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
30.22 |
Third Party Reference Banks
|
31 |
THE SECURITY AGENT
|
31.1 |
Trust
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 31 (
The Security Agent
) and the other provisions of the Finance Documents.
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
31.2 |
Parallel Debt (Covenant to pay the Security Agent)
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b) |
The Parallel Debt of an Obligor:
|
(i) |
shall become due and payable at the same time as its Corresponding Debt;
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c) |
For purposes of this Clause 31.2 (
Parallel Debt (Covenant to pay the Security Agent)
), the Security Agent:
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased,
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 31.2 (
Parallel Debt (Covenant to pay the Security Agent)
) to the extent permitted by applicable law, shall be applied in accordance with Clause 34.5 (
Application of receipts; partial payments
).
|
(f) |
This Clause 31.2 (
Parallel Debt (Covenant to pay the Security Agent)
) shall apply, with any necessary modifications, to each Finance Document.
|
31.3 |
Enforcement through Security Agent only
|
31.4 |
Instructions
|
(a) |
The Security Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by:
|
(A) |
all Lenders (or the Facility Agent on their behalf) if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders (or the Facility Agent on their behalf); and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or the Facility Agent on their behalf) (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause 31.28 (
Application of receipts
);
|
(B) |
Clause 31.29 (
Permitted Deductions
); and
|
(C) |
Clause 31.30 (
Prospective liabilities
).
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 43 (
Amendments and Waivers
), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i) |
it has not received any instructions as to the exercise of that discretion; or
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 31.4 (
Instructions
), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or
|
31.5 |
Duties of the Security Agent
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e) |
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
31.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor.
|
(b) |
The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account.
|
31.7 |
Business with a Transaction Obligor
|
31.8 |
Rights and discretions
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents;
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked;
|
(C) |
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through the Facility Agent and may give to the Facility Agent any notice or other communication required to be given by the Security Agent to any Finance Party.
|
(c) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by either Borrower (other than a Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Transaction Obligors.
|
(d) |
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(e) |
Without prejudice to the generality of paragraph (c) above or paragraph (f) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(f) |
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(g) |
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(h) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
31.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Arranger, a Transaction Obligor or any other person in, or in connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
31.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
31.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered into,
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Security Agent if the Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Security Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate, any liability of the Security Agent or any Receiver or Delegate arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or
|
31.12 |
Lenders' indemnity to the Security Agent
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's or Receiver's gross negligence or wilful misconduct) in acting as Security Agent or Receiver under the Finance Documents (unless the Security Agent or Receiver has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
31.13 |
Resignation of the Security Agent
|
(a) |
The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d) |
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrowers shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(e) |
The Security Agent's resignation notice shall only take effect upon:
|
(i) |
the appointment of a successor; and
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 31.25 (
Winding up of trust
) and paragraph (d) above) but shall remain entitled to the benefit of Clause 14.5 (
Indemnity to the Security Agent
) and this Clause 31 (
The Security Agent
) and any other provisions of a Finance Document
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrowers.
|
(h) |
The consent of either Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
31.14 |
Confidentiality
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
31.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each Transaction Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
31.16 |
Security Agent's management time
|
(a) |
If a Potential Event of Default or an Event of Default has occurred which is continuing, any amount payable to the Security Agent under Clause 14.5 (
Indemnity to the Security Agent
), Clause 16 (
Costs and Expenses
) and Clause 31.12 (
Lenders' indemnity to the Security Agent
) shall include the cost of utilising the Security Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Security Agent may notify to the Borrowers and the other Finance Parties, and is in addition to any fee paid or payable to the Security Agent under Clause 11 (
Fees
). The Security Agent shall as soon as reasonably practicable notify the Borrowers in writing of any extraordinary management time which the Security Agent is envisaging to spend and will deliver a budget to the Borrowers in respect of such extraordinary management time.
|
(b) |
Without prejudice to paragraph (a) above, in the event of:
|
(i) |
a Default;
|
(ii) |
the Security Agent being requested by a Transaction Obligor or the Majority Lenders to undertake duties which the Security Agent and the Borrowers agree to be of an exceptional nature or outside the scope of the normal duties of the Security Agent under the Finance Documents; or
|
(iii) |
the Security Agent and the Borrowers agreeing that it is otherwise appropriate in the circumstances,
|
(c) |
If the Security Agent and the Borrowers fail to agree upon the nature of the duties, or upon the additional remuneration referred to in paragraph (b) above or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Borrowers or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrowers) and the determination of any investment bank shall be final and binding upon the Parties.
|
31.17 |
Reliance and engagement letters
|
31.18 |
No responsibility to perfect Transaction Security
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Security Document.
|
31.19 |
Insurance by Security Agent
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Security Assets;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
31.20 |
Custodians and nominees
|
31.21 |
Delegation by the Security Agent
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
31.22 |
Additional Security Agents
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
31.23 |
Acceptance of title
|
31.24 |
Releases
|
31.25 |
Winding up of trust
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Transaction Obligor pursuant to the Finance Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause 31.13 (
Resignation of the Security Agent
) shall release, without recourse or warranty, all of its rights under each Security Document.
|
31.26 |
Powers supplemental to Trustee Acts
|
31.27 |
Disapplication of Trustee Acts
|
31.28 |
Application of receipts
|
(a) |
in discharging any sums owing to the Security Agent (in its capacity as such) (other than pursuant to Clause 31.2 (
Parallel Debt (Covenant to pay the Security Agent)
) or any Receiver or Delegate;
|
(b) |
in payment or distribution to the Facility Agent, on its behalf and on behalf of the other Secured Parties, for application towards the discharge of all sums due and payable by any Transaction Obligor under any of the Finance Documents in accordance with Clause 34.5 (
Application of receipts; partial payments
);
|
(c) |
if none of the Transaction Obligors is under any further actual or contingent liability under any Finance Document, in payment or distribution to any person to whom the Security Agent is obliged to pay or distribute in priority to any Transaction Obligor; and
|
(d) |
the balance, if any, in payment or distribution to the relevant Transaction Obligor.
|
31.29 |
Permitted Deductions
|
(a) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and
|
(b) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as
|
31.30 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
31.31 |
Investment of proceeds
|
31.32 |
Currency conversion
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
31.33 |
Good discharge
|
(a) |
Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf of the Secured Parties and any payment made in that way shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(b) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
31.34 |
Amounts received by Obligors
|
31.35 |
Application and consideration
|
31.36 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document,
|
32 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
33 |
SHARING AMONG THE FINANCE PARTIES
|
33.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 34 (
Payment Mechanics
), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "
Sharing Payment
") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 34.5 (
Application of receipts; partial payments
).
|
33.2 |
Redistribution of payments
|
33.3 |
Recovering Finance Party's rights
|
33.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "
Redistributed Amount
"); and
|
(b) |
as between the relevant Transaction Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Transaction Obligor.
|
33.5 |
Exceptions
|
(a) |
This Clause 33 (
Sharing among the Finance Parties
) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Transaction Obligor.
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
34 |
PAYMENT MECHANICS
|
34.1 |
Payments to the Facility Agent
|
(a) |
On each date on which a Transaction Obligor or a Lender is required to make a payment under a Finance Document, that Transaction Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
34.2 |
Distributions by the Facility Agent
|
34.3 |
Distributions to a Transaction Obligor
|
34.4 |
Clawback and pre-funding
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b) |
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c) |
If the Facility Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the
|
(i) |
the Facility Agent shall notify the Borrowers of that Lender's identity and the Borrowers shall on demand refund it to the Facility Agent; and
|
(ii) |
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrowers shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
34.5 |
Application of receipts; partial payments
|
(a) |
If the Facility Agent or the Security Agent (as applicable) receives a payment that is insufficient to discharge all the amounts then due and payable by a Transaction Obligor under the Finance Documents, the Facility Agent or the Security Agent (as applicable) shall apply that payment towards the obligations of that Transaction Obligor under the Finance Documents in the following order:
|
(i) |
first
, in or towards payment
pro rata
of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the Security Agent, any Receiver or any Delegate under the Finance Documents;
|
(ii) |
secondly
, in or towards payment
pro rata
of any accrued interest and fees due but unpaid to the Lenders under this Agreement;
|
(iii) |
thirdly
, in or towards payment
pro rata
of any principal due but unpaid to the Lenders under this Agreement; and
|
(iv) |
fourthly
, in or towards payment
pro rata
of any other sum due to any Finance Party but unpaid under the Finance Documents.
|
(b) |
The Facility Agent shall, if so directed by the Majority Lenders, vary, or instruct the Security Agent to vary (as applicable), the order set out in sub-paragraphs (ii) to (iv) of paragraph (a) above.
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by a Transaction Obligor.
|
34.6 |
No set-off by Transaction Obligors
|
34.7 |
Business Days
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
34.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
34.9 |
Change of currency
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrowers); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrowers) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
34.10 |
Currency Conversion
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
34.11 |
Disruption to Payment Systems etc.
|
(a) |
the Facility Agent may, and shall if requested to do so by a Borrower, consult with the Borrowers with a view to agreeing with the Borrowers such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b) |
the Facility Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c) |
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d) |
any such changes agreed upon by the Facility Agent and the Borrowers shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties and any Transaction Obligors as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 43 (
Amendments and Waivers
);
|
(e) |
the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 34.11 (
Disruption to Payment Systems etc.
); and
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
35 |
SET-OFF
|
36 |
BAIL-IN
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
37 |
NOTICES
|
37.1 |
Communications in writing
|
37.2 |
Addresses
|
(a) |
in the case of the Borrowers, that specified in Schedule 1 (
The Parties
);
|
(b) |
in the case of each Lender, that specified in Schedule 1 (
The Parties
) or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Facility Agent, that specified in Schedule 1 (
The Parties
); and
|
(d) |
in the case of the Security Agent, that specified in Schedule 1 (
The Parties
),
|
37.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, and, if a particular department or officer is specified as part of its address details provided under Clause 37.2 (
Addresses
), if addressed to that department or officer.
|
(b) |
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention of the department or officer of that Servicing Party specified in Schedule 1 (
The Parties
) (or any substitute department or officer as that Servicing Party shall specify for this purpose).
|
(c) |
All notices from or to a Transaction Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the Borrowers in accordance with this Clause will be deemed to have been made or delivered to each of the Transaction Obligors.
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
37.4 |
Notification of address
|
37.5 |
Electronic communication
|
(a) |
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(b) |
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
|
(c) |
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Facility Agent or the Security Agent only if it is addressed in such a manner as the Facility Agent or the Security Agent shall specify for this purpose.
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5.00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
|
(e) |
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 37.5 (
Electronic communication
).
|
37.6 |
English language
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
38 |
CALCULATIONS AND CERTIFICATES
|
38.1 |
Accounts
|
38.2 |
Certificates and determinations
|
38.3 |
Day count convention
|
39 |
PARTIAL INVALIDITY
|
40 |
REMEDIES AND WAIVERS
|
41 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
42 |
IRREVOCABLE PAYMENT
|
43 |
AMENDMENTS AND WAIVERS
|
43.1 |
Required consents
|
(a) |
Subject to Clause 43.2 (
All Lender matters
) and Clause 43.3 (
Other exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 43 (
Amendments and Waivers
).
|
(c) |
Without prejudice to the generality of Clause 30.8 (
Rights and discretions
), the Facility Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
43.2 |
All Lender matters
|
(a) |
the definition of "Majority Lenders" in Clause 1.1 (
Definitions
);
|
(b) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(c) |
a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(d) |
a change in currency of payment of any amount under the Finance Documents;
|
(e) |
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments rateably under the Facility;
|
(f) |
a change to any Transaction Obligor other than in accordance with Clause 29 (
Changes to the Transaction Obligors
);
|
(g) |
any provision which expressly requires the consent of all the Lenders;
|
(h) |
this Clause 43 (
Amendments and Waivers
);
|
(i) |
any change to the preamble (Background), Clause 2 (
The Facility
), Clause 3 (
Purpose
), Clause 5 (
Utilisation
), Clause 6.2 (
Effect of cancellation and prepayment on scheduled repayments
), Clause 7.4 (
Mandatory prepayment on sale, Total Loss
), Clause 8 (
Interest
), Clause 26 (
Accounts and application of Earnings
), Clause 28 (
Changes to the Lenders
), Clause 33 (
Sharing among the Finance Parties
), Clause 47 (
Governing Law
) or Clause 48 (
Enforcement
);
|
(j) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction Security as it relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
|
(k) |
(other than as expressly permitted by the provisions of any Finance Document), the nature or scope of:
|
(i) |
the Security Assets; or
|
(ii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(l) |
the release of any Transaction Security unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document; or
|
43.3 |
Other exceptions
|
(a) |
An amendment or waiver which relates to the rights or obligations of a Servicing Party, the Arranger or a Reference Bank (each in their capacity as such) may not be effected without the consent of that Servicing Party, the Arranger or that Reference Bank, as the case may be.
|
(b) |
The Borrowers and the Facility Agent, the Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party.
|
43.4 |
Replacement of Screen Rate
|
(a) |
Subject to Clause 43.3 (
Other exceptions
), if the Screen Rate is not available for dollars, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to dollars, in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that benchmark rate) may be made with the consent of the Majority Lenders and the Transaction Obligors.
|
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 10 Business Days (unless the Borrower and the Facility Agent agree to a longer time period in relation to any request) of that request being made:
|
(i) |
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
(ii) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
43.5 |
Obligor Intent
|
44 |
CONFIDENTIAL INFORMATION
|
44.1 |
Confidentiality
|
44.2 |
Disclosure of Confidential Information
|
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b) |
to any person:
|
(i) |
to (or through) whom it assigns or transfers all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent or Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Transaction Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 30.15 (
Relationship with the other Finance Parties
));
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii) |
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 28.8 (
Security over Lenders' rights
);
|
(viii) |
who is a Party, a Transaction Obligor or any related entity of a Transaction Obligor;
|
(ix) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or
|
(x) |
with the consent of the Borrowers;
|
(A) |
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B) |
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that
|
(C) |
in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c) |
to any person appointed by that Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/ Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Finance Party;
|
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Transaction Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
44.3 |
Disclosure to numbering service providers
|
(a) |
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Transaction Obligors the following information:
|
(i) |
names of Transaction Obligors;
|
(ii) |
country of domicile of Transaction Obligors;
|
(iii) |
place of incorporation of Transaction Obligors;
|
(iv) |
date of this Agreement;
|
(v) |
Clause 47 (
Governing Law
);
|
(vi) |
the names of the Facility Agent and the Arranger;
|
(vii) |
date of each amendment and restatement of this Agreement;
|
(viii) |
amount of Total Commitments;
|
(ix) |
currency of the Facility;
|
(x) |
type of Facility;
|
(xi) |
ranking of Facility;
|
(xii) |
Termination Date for Facility;
|
(xiii) |
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above; and
|
(xiv) |
such other information agreed between such Finance Party and the Borrowers,
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Transaction Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c) |
Each Obligor represents, on behalf of itself and the other Transaction Obligors, that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
(d) |
The Facility Agent shall notify the Corporate Guarantor and the other Finance Parties of:
|
(i) |
the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more Transaction Obligors; and
|
(ii) |
the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Transaction Obligors by such numbering service provider.
|
44.4 |
Entire agreement
|
44.5 |
Inside information
|
44.6 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 44.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 44 (
Confidential Information
).
|
44.7 |
Continuing obligations
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
45 |
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
|
45.1 |
Confidentiality and disclosure
|
(a) |
The Facility Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.
|
(b) |
The Facility Agent may disclose:
|
(i) |
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause 8.4 (
Notification of rates of interest
); and
|
(ii) |
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may be.
|
(c) |
The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:
|
(i) |
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
(ii) |
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that
|
(iv) |
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
(d) |
The Facility Agent's obligations in this Clause 45 (
Confidentiality of Funding Rates and Reference Bank Quotations
) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 8.4 (
Notification of rates of interest
)
provided
that
(other than pursuant to sub-paragraph (i) of paragraph (b) above) the Facility Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
45.2 |
Related obligations
|
(a) |
The Facility Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.
|
(b) |
The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:
|
(i) |
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph (c) of Clause 45.1 (
Confidentiality and disclosure
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(ii) |
upon becoming aware that any information has been disclosed in breach of this Clause 45 (
Confidentiality of Funding Rates and Reference Bank Quotations
).
|
45.3 |
No Event of Default
|
46 |
COUNTERPARTS
|
47 |
GOVERNING LAW
|
48 |
ENFORCEMENT
|
48.1 |
Jurisdiction
|
(a) |
Unless specifically provided in another Finance Document in relation to that Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with any Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a "
Dispute
").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 48.1 (
Jurisdiction
) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
48.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor:
|
(i) |
irrevocably appoints Messrs E. J. C. Album Solicitors, presently of Landmark House, 190 Willifield Way, London NW11 6YA, England (attention: Mr Edward Album, tel: +44 208 455 7653, fax: +44 208 457 5558 and email:
ejca@mitgr.com
) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of all the Obligors) must immediately (and in any event within 5 days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
(qqqqqqq)
Name of Borrowers
|
(rrrrrrr)
Place of Incorporation
|
(sssssss)
Registration number (or equivalent, if any)
|
(ttttttt)
Address for Communication
|
(uuuuuuu)
Partner Shipping Co.
|
(vvvvvvv)
Marshall Islands
|
(wwwwwww) 89795
|
(xxxxxxx)
16 Grigoriou Lambraki, 16674 Glyfada, Athens, Greece
|
(yyyyyyy)
Champion Ocean Navigation Co.
|
(zzzzzzz)
Liberia
|
(aaaaaaaa)
C-118163
|
(bbbbbbbb)
16 Grigoriou Lambraki, 16674 Glyfada, Athens, Greece
|
(cccccccc)
Name of Corporate Guarantor
|
(dddddddd)
Place of Incorporation
|
(eeeeeeee)
Registration number
(or equivalent, if any) |
(ffffffff)
Address for Communication
|
||
(gggggggg)
Seanergy Maritime Holdings Corp.
|
(hhhhhhhh)
Marshall Islands
|
(iiiiiiii)
27721
|
(jjjjjjjj)
16 Grigoriou Lambraki, 16674 Glyfada, Athens, Greece
|
(kkkkkkkk)
Name of Original Lender Commitment
|
(llllllll)
Address for Communication
|
(mmmmmmmm)
Commitment
|
(nnnnnnnn)
Amsterdam Trade Bank N.V.
|
(oooooooo)
Herengracht 469
Amsterdam 1017 BS The Netherlands
(pppppppp)
Attn:
Iraklis Tsirigotis
Shipping Finance Email: I.Tsirigotis@atbank.nl
(qqqqqqqq)
Attn:
Vassilis Kolovos
(rrrrrrrr)
Shipping Finance
Email: v.kolovos@atbank.nl |
(ssssssss)
$34,500,000
|
(tttttttt)
Name of Facility Agent
|
(uuuuuuuu)
Address for Communication
|
(vvvvvvvv)
Amsterdam Trade Bank N.V.
|
(wwwwwwww)
Herengracht 469
Amsterdam 1017 BS The Netherlands
(xxxxxxxx)
Attn:
Iraklis Tsirigotis
Shipping Finance Email: I.Tsirigotis@atbank.nl
(yyyyyyyy)
Attn:
Vassilis Kolovos
Shipping Finance Email: v.kolovos@atbank.nl |
(zzzzzzzz)
|
(aaaaaaaaa)
|
(bbbbbbbbb)
Name of Security Agent
|
(ccccccccc)
Address for Communication
|
(ddddddddd)
Amsterdam Trade Bank N.V.
|
(eeeeeeeee)
Herengracht 469
Amsterdam 1017 BS The Netherlands
(fffffffff)
Attn:
Iraklis Tsirigotis
Shipping Finance Email: I.Tsirigotis@atbank.nl
(ggggggggg)
Attn:
Vassilis Kolovos
Shipping Finance Email: v.kolovos@atbank.nl |
1 |
Obligors
|
1.1 |
A copy of the constitutional documents of each Obligor and the Shareholder.
|
1.2 |
A copy of a resolution of the board of directors (and if required for the purposes of any legal opinion, the shareholders only of the Borrowers) of each Obligor and the Shareholder:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.3 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party.
|
1.4 |
A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.
|
1.5 |
A certificate of each Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Transaction Obligor to be exceeded.
|
1.6 |
A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
|
1.7 |
A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part A of Schedule 2 (
Conditions Precedent
) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2 |
Finance Documents and other Documents
|
2.1 |
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (
Conditions Precedent
), including for the avoidance of doubt, the Intercreditor Agreement or (as applicable) the Intercreditor Deed of Accession, Amendment and Restatement.
|
2.2 |
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this Schedule 2 (
Conditions Precedent
).
|
3 |
Security
|
3.1 |
A duly executed original of the Account Security and of the Share Security (and of each document to be delivered under each of them).
|
4 |
Legal opinions
|
4.1 |
A legal opinion of Watson, Farley & Williams LLP legal advisers to the Arranger, the Facility Agent and the Security Agent in England, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
4.2 |
A legal opinion from Nauta Dutilh, legal advisers to the Facility Agent and the Security Agent in The Netherlands, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
4.3 |
If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger, the Facility Agent and the Security Agent in the relevant jurisdiction, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
5 |
Other documents and evidence
|
5.1 |
Evidence that any process agent referred to in Clause 48.2 (
Service of process
) has accepted its appointment.
|
5.2 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document.
|
5.3 |
The Original Financial Statements of the Corporate Guarantor.
|
5.4 |
The original of any mandates or other documents required in connection with the opening or operation of the Accounts.
|
5.5 |
In the case of Tranche B, evidence that:
|
(a) |
an amount of $500,000 has been credited to the Operating Account of Borrower B in order to assist the Borrowers in complying with the requirements of Clause 21 (
Financial Covenants
);
|
(b) |
a further amount of $300,000 has been credited to the Operating Account of Borrower B to be applied towards payment of (i) expenses reasonably incurred (and evidenced, if required by the Lenders) in the day-to-day running of Ship B and (ii) amounts payable by the Borrowers pursuant to Clauses 6.1 (
Repayment of Loan
) and 8 (
Interest
).
|
5.6 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the relevant Utilisation Date.
|
5.7 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" including, but not limited to, the Obligors and the ultimate beneficial owners of the Obligors or similar identification procedures in relation to the transactions contemplated by the Finance Documents.
|
1 |
Borrowers
|
2 |
Release of Existing Security
|
3 |
Mortgage Addendum
|
4 |
Ship and other security
|
4.1 |
A duly executed original of the Mortgage, the General Assignment and, if applicable, the Charter Assignment in respect of the Relevant Ship and of each document to be delivered under or pursuant to each of them together with documentary evidence that the Mortgage in respect of the Relevant Ship has been duly recorded as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of its Approved Flag.
|
4.2 |
Documentary evidence that the Relevant Ship:
|
(a) |
is definitively and permanently registered in the name of the Relevant Borrower under the Approved Flag applicable to the Relevant Ship;
|
(b) |
is in the absolute and unencumbered ownership of the Relevant Borrower save as contemplated by the Finance Documents and the Junior Finance Documents relating to the Relevant Borrower and/or the Relevant Ship;
|
(c) |
maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and
|
(d) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
4.3 |
Documents establishing that the Relevant Ship will, as from the Utilisation Date for the relevant Tranche, be managed commercially by its Approved Commercial Manager and managed technically by its Approved Technical Manager on terms acceptable to the Facility Agent acting with the authorisation of all of the Lenders, together with:
|
(a) |
a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager of the Relevant Ship; and
|
(b) |
copies of the relevant Approved Technical Manager's Document of Compliance and of Ship B Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Relevant Ship including without limitation an ISSC.
|
4.4 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
4.5 |
Valuations of the Relevant Ship, addressed to the Facility Agent on behalf of the Finance Parties, stated to be for the purposes of this Agreement and dated not earlier than 14 days before the Utilisation Date for the relevant Tranche from two Approved Brokers which shows a Market Value for such Ship which would result in the satisfaction of Clause 25 (
Security Cover
) after the relevant Advance under Tranche B has been utilised.
|
5 |
Legal opinions
|
6 |
Other documents and evidence
|
2 |
Ship and other security
|
2.1 |
A copy of the Qualifying Charter and of all documents signed or issued by Borrower A or the relevant charterer (or either of them) under or in connection with it.
|
2.2 |
Documentary evidence that Ship A has been unconditionally delivered by Borrower A to, and accepted by, the relevant charterer under the Qualifying Charter.
|
2.3 |
A duly executed original of the Charter Assignment in respect of Ship A and of each document to be delivered under or pursuant to it.
|
3 |
Other documents and evidence
|
(hhhhhhhhh)
From:
|
(iiiiiiiii)
Partner Shipping Co. and
(jjjjjjjjj)
Champion Ocean Navigation Co
|
(kkkkkkkkk)
|
(lllllllll)
|
(mmmmmmmmm)
To:
|
(nnnnnnnnn)
Amsterdam Trade Bank N.V.
|
1 |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to borrow Tranche [A][B] on the following terms:
|
(ooooooooo)
|
(ppppppppp)
Proposed Utilisation Date:
|
(qqqqqqqqq)
[
l
] (or, if that is not a Business Day, the next Business Day)
|
(rrrrrrrrr)
|
(sssssssss)
|
(ttttttttt)
Amount:
|
(uuuuuuuuu)
[
l
] or, if less, the Available Facility
|
(vvvvvvvvv)
|
(wwwwwwwww)
|
(xxxxxxxxx)
Interest Period:
|
(yyyyyyyyy)
[
l
]
|
(zzzzzzzzz)
|
3 |
We confirm that each condition specified in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2 (
Further conditions precedent
) of the Agreement as they relate to this Advance to which this Utilisation Request refers is satisfied on the date of this Utilisation Request.
|
4 |
The proceeds of this Advance should be credited to [account].
|
5 |
This Utilisation Request is irrevocable.
|
(aaaaaaaaaa)
From:
|
(bbbbbbbbbb)
Partner Shipping Co. and
(cccccccccc)
Champion Ocean Navigation Co
|
(dddddddddd)
|
(eeeeeeeeee)
|
(ffffffffff)
To:
|
(gggggggggg)
Amsterdam Trade Bank N.V.
|
1 |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2 |
We request that the next Interest Period for Tranche [A][B] be [
l
]
|
3 |
This Selection Notice is irrevocable.
|
(hhhhhhhhhh)
To:
|
(iiiiiiiiii)
Amsterdam Trade Bank N.V. as Facility Agent
|
(jjjjjjjjjj)
From:
|
(kkkkkkkkkk)
[The Existing Lender] (the "
Existing Lender
") and [The New Lender] (the "
New Lender
")
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2 |
We refer to Clause 28.5 (
Procedure for transfer
) of the Agreement:
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 28.5 (
Procedure for transfer
) of the Agreement.
|
(b) |
The proposed Transfer Date is [
l
].
|
(c) |
The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 37.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (
Limitation of responsibility of Existing Lenders
) of the Agreement.
|
4 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5 |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
6 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
(llllllllll)
[Existing Lender]
|
(mmmmmmmmmm)
[New Lender]
|
(nnnnnnnnnn)
|
(oooooooooo)
By: [
l
]
|
(pppppppppp)
By: [
l
]
|
(qqqqqqqqqq)
|
(rrrrrrrrrr)
To:
|
(ssssssssss)
Amsterdam Trade Bank N.V. as Facility Agent and Partner Shipping Co. and Champion Ocean Navigation Co.
as Borrowers, for and on behalf of each [Transaction] Obligor
|
(tttttttttt)
From:
|
(uuuuuuuuuu)
[the Existing Lender] (the "
Existing Lender
") and [the New Lender] (the "
New Lender
")
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2 |
We refer to Clause 28.6 (
Procedure for assignment
):
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule.
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
(d) |
All rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrower or any other Transaction Obligor had against the Existing Lender.
|
3 |
The proposed Transfer Date is [
l
].
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5 |
The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 37.2 (
Addresses
) are set out in the Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (
Limitation of responsibility of Existing Lenders
).
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 28.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrowers
), to the Borrowers (on behalf of each Transaction Obligor) of the assignment referred to in this Assignment Agreement.
|
8 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
9 |
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
To:
|
Amsterdam Trade Bank N.V. as Facility Agent
|
From:
|
Partner Shipping Co. and
Champion Ocean Navigation Co
|
1 |
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2 |
We confirm that:
|
(a) |
the balance on the Operating Accounts at all times during the six month period ending on [
l
] was more than [
l
];
|
(b) |
the EBITDA to Net Interest Expense Ratio is [
l
];
|
(c) |
the Cash per Fleet Vessel is of $[
l
]; and
|
(d) |
the Net Debt to Market Value Adjusted Total Assets is [
l
] per cent.; and
|
(e) |
the Market Value of the Ship plus the net realisable value of additional Security provided under Clause 25.2 (
Provision of additional security; prepayment
) is [
l
] per cent. of the Loan.
|
3 |
We confirm that no Default is continuing.
|
Signed:
|
________________________
|
|
Officer
of
Partner Shipping Co.
|
||
________________________
|
||
Officer
of
Champion Ocean Navigation Co.
|
Ship name
|
Type
|
GRT
|
NRT
|
Approved Flag
|
Approved Classification Society
|
Approved Classification
|
Approved Commercial Manager
|
Approved Technical Manager
|
"PARTNERSHIP"
|
Bulk Carrier
|
93,175
|
60,453
|
Marshall Islands
|
Korean Register of Shipping
|
+KRS1
|
Fidelity Marine or Seanergy Management (as the case may be)
|
V. Ships
|
"CHAMPIONSHIP"
|
Bulk Carrier
|
93,196
|
59,298
|
Liberia
|
Bureau Veritas
|
I* Hull *Mach
|
Fidelity Marine or Seanergy Management (as the case may be)
|
V. Ships
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (
Delivery of a Utilisation Request
)) or a Selection Notice (Clause 9.1 (
Selection of Interest Periods
))
|
Two Business Days before the intended Utilisation Date (Clause 5.1 (
Delivery of a Utilisation Request
)) or the expiry of the preceding Interest Period (Clause 9.1 (
Selection of Interest Periods
))
|
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (
Lenders' participation
)
|
One Business Day before the intended Utilisation Date.
|
|
LIBOR is fixed
|
Quotation Day as of 11:00 am London time
|
|
Reference Bank Rate calculated by reference to available quotations in accordance with Clause 10.2 (
Calculation of Reference Bank Rate
)
|
Noon on the Quotation Day
|
From:
|
[Partner Shipping Co.]
[Champion Ocean Navigation Co.]
|
|
To:
|
Amsterdam Trade Bank N.V.
|
Item
|
Unit
|
Actual
|
Comment
|
1.
Average daily gross TCE hire earned
|
USD
|
||
2.
Total brokerage commission charged
|
USD
|
||
3.
Average daily net TCE hire earned
|
USD
|
||
4.
Total on-hire days
|
No.
|
||
5.
Total off-hire days
|
No.
|
||
6.
Average daily operating expenses
|
USD
|
||
7.
Average daily management expenses
|
USD
|
||
8.
Average daily SG&A expenses
|
USD
|
||
9.
Total maintenance expenses*
|
USD
|
||
10. Other expenses
|
USD
|
Clause
|
Index
|
Page
|
1
|
Purpose, Definitions and Interpretation
|
2
|
2
|
The Loan
|
11
|
3
|
Interest
|
11
|
4
|
Repayment
|
12
|
5
|
Prepayment
|
12
|
6
|
Representations and Warranties
|
13
|
7
|
Covenants and Undertakings of the Borrower
|
13
|
8
|
Insurance
|
14
|
9
|
Ship Covenants
|
18
|
10
|
Events of Default
|
22
|
11
|
Fees
|
24
|
12
|
Application of Receipts
|
24
|
13
|
Notices
|
25
|
14
|
Amendments and Waivers
|
25
|
15
|
Process Agent
|
25
|
16
|
Governing Law and Jurisdiction
|
26
|
17
|
Miscellaneous
|
26
|
Schedule 1 Form of Drawdown Notice
|
28
|
Schedule 2 Condition Precedent Documents
|
29
|
Part A
|
29
|
Part B
|
30
|
Schedule 3 Details of the Ships
|
31
|
Execution Page
|
27
|
(B) |
By the Deed of Amendment and Restatement, the Lender agreed to certain amendments to the Loan Agreement and the other Finance Documents including, without limitation, the following:
|
(i) |
the amendment of certain provisions of the Loan Agreement (including, without limitation, the Applicable Margin and the Final Repayment Date);
|
(ii) |
the addition of Owner B as guarantor in the Loan Agreement and the provision of additional security by Owner B to cover the Borrower's obligations to the Lender under (a) the Loan Agreement and (b) a convertible promissory note dated on or about the date of this Deed for an amount of $13,750,000 (the "
Note
");
|
(iii) |
the amendment and restatement of the guarantee dated 24 May 2017 and executed by Partner Shipping Co., of the Republic of the Marshall Islands ("
Owner A
") to additionally cover the obligations of the Borrower to the Lender under the Note;
|
(iv) |
the amendment and restatement of the general assignment dated 31 May 2017 and executed by Owner A to additionally cover the obligations of the Borrower to the Lender under the Note; and
|
(v) |
the amendment and restatement of the Loan Agreement.
|
(C) |
By a Memorandum of Agreement dated 28 March 2017 (together with all amendments or addenda thereto referred to as the "
MOA"
) and made between (i) the Company (for Owner A nominated as final buyers) and (ii) DA Pacific Maritime S.A. of Panama as sellers (the "
Seller
"), Owner A has purchased Ship A.
|
(D) |
Champion Ocean Navigation Co., of Liberia ("
Owner B
" and together with Owner A, the "
Owners
" and each, an "
Owner
") owns the motor vessel named "CHAMPIONSHIP" ("
Ship B
").
|
(E) |
The Company is the registered, legal and beneficial owner of each Owner.
|
(F) |
Emperor (as defined herein below) is a wholly owned subsidiary of the Company.
|
(H) |
This Agreement sets out the terms and conditions of the facility agreement, the guarantee and the general assignment referred to in the Background as amended and restated by the Deed of Amendment and Restatement.
|
(a) |
during the period commencing on the Drawdown Date and ending on the date of the Deed of Amendment and Restatement (inclusive), 7 per cent. per annum;
|
(b) |
during the period commencing one day after the date of the Deed of Amendment and Restatement and ending on 24 May 2019, 6 per cent. per annum; and
|
(c) |
if the facility is extended pursuant to Clause 5.5, at all times during such extension period the rate shall increase by 1 per cent. per annum.
|
(a) |
June 30, 2017 (or such later date as the Lender may agree with the Borrowers); and
|
(b) |
the date on which the Loan is fully borrowed, cancelled or terminated.
|
(a) |
except to the extent that they fall within paragraph (b):
|
(i) |
all freight, hire and passage moneys;
|
(ii) |
compensation payable to an Owner or the Lender in the event of requisition of that Ship for hire;
|
(iii) |
remuneration for salvage and towage services;
|
(iv) |
demurrage and detention moneys;
|
(v) |
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and
|
(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire; and
|
(b) |
if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.
|
(a) |
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
(b) |
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
(a) |
any release of Environmentally Sensitive Material from that Ship; or
|
(b) |
any incident in which Environmentally Sensitive Material is released from a vessel other than that Ship and which involves a collision between that Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which that Ship is actually liable to be arrested, attached, detained or injuncted and/or that Ship and/or the Owner and/or any operator or manager of that Ship is at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released otherwise than from that Ship and in connection with which that Ship is actually liable to be arrested and/or where the Owner and/or any operator or manager of that Ship is at fault otherwise liable to any legal or administrative action.
|
(a) |
24 May 2019; or
|
(b) |
24 May 2020 in the event that the facility has been extended pursuant to Clause 5.5; or
|
(c) |
if earlier, the date on which the Lender terminates or cancels this Agreement in accordance with the provisions hereof.
|
(a) |
this Agreement;
|
(b) |
the Deed of Amendment and Restatement;
|
(c) |
the Intercreditor Deed;
|
(d) |
the Intercreditor Deed of Accession, Amendment and Restatement;
|
(e) |
the Emperor Guarantee;
|
(f) |
any Owner Guarantee;
|
(g) |
any General Assignment;
|
(h) |
any Mortgage; and
|
(i) |
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower or the Owners (or either of them) or the Guarantors (or any of the) (except from an Approved Manager outside of the Borrower's group) or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lender under this Agreement or any of the other documents referred to in this definition and, in the singular, means any of them.
|
(a) |
in relation to Ship A, the second priority general assignment creating Security over that Ship's Earnings, its Insurances and any Requisition Compensation dated 31 May 2017 executed by Owner A as amended and restated pursuant to the Deed of Amendment and Restatement, in the Agreed Form;
|
(b) |
in relation to Ship B, the second priority general assignment creating Security over that Ship's Earnings, its Insurances and any Requisition Compensation in relation to that Ship to be executed by Owner B, in the Agreed Form,
|
(a) |
all policies and contracts of insurance and any reinsurance, policies or contracts, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to it whether before, on or after the date of this Agreement; and
|
(b) |
all rights (including, without limitation, any and all rights or claims which an Owner may have under or in connection with any cut-through clause relative to any reinsurance contract
|
(a) |
in relation to Ship A, the second preferred Marshall Islands mortgage on that Ship dated 31 May 2017 executed by Owner A in favour of the Lender (the "
Original Mortgage
"), as amended and supplemented by the Mortgage Addendum, in the Agreed Form;
|
(b) |
in relation to Ship B, a second preferred Liberian mortgage on that Ship to be executed by Owner B in favour of the Lender and, if required by the laws of the relevant Approved Flag State, the deed of covenant collateral to the mortgage in the Agreed Form,
|
(a) |
the
irrevocable and unconditional guarantee dated 24 May 2017 in respect of the obligations of the Borrower under (i) this Agreement and (ii) the Note, executed by Owner A in favour of the Lender as amended and/or supplemented and/or restated pursuant to the Deed of Amendment and Restatement, in the Agreed Form;
|
(b) |
the
irrevocable and unconditional guarantee of the obligations of the Borrower under (i) this Agreement and (ii) the Note, to be executed by Owner B in favour of the Lender in the Agreed Form,
|
(a) |
Security Interests created by the Finance Documents;
|
(b) |
Security Interests created by or pursuant to the Senior Finance Documents or contemplated by the Intercreditor Deed;
|
(c) |
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(d) |
liens for salvage;
|
(e) |
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in relation to that Ship not prohibited by this Agreement;
|
(f) |
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of that Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by an Owner in good faith by
|
(g) |
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where an Owner is actively prosecuting or defending such proceedings or arbitration in good faith; and
|
(h) |
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made.
|
(a) |
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
|
(b) |
the rights of a plaintiff under an action in rem in which the vessel concerned has been arrested or a writ has been issued or similar step taken; and
|
(c) |
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.
|
(a) |
all amounts which have become due for payment by the Borrower under this Agreement have been paid; and
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under this Agreement.
|
(a) |
the first preferred Marshall Islands mortgage on Ship A dated 31 May 2017 and executed by Owner A in favour of the Senior Mortgagee as amended and supplemented by an addendum no. 1 thereto executed or to be executed by Owner A and the Senior Mortgagee;
|
(b) |
the first priority general assignment of the Earnings, Insurances and any Requisition Compensation in respect of Ship A dated 31 May 2017 and executed by Owner A in favour of the Senior Mortgagee;
|
(c) |
the first preferred Liberian mortgage on Ship B executed or to be executed by Owner B in favour of the Senior Mortgagee; and
|
(d) |
the first priority general assignment of the Earnings, Insurances and any Requisition Compensation in respect of Ship B executed or to be executed by Owner B in favour of the Senior Mortgagee.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
(b) |
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full or part consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 2 months from the date of such occurrence redelivered to the full control of relevant Owner;
|
(c) |
any condemnation of that Ship by any tribunal or by any person or person claiming to be a tribunal; and
|
(d) |
any arrest, capture, seizure, confiscation or detention of that Ship (including any hijacking or theft) unless it is within 2 months redelivered to the full control of the relevant Owner.
|
(a) |
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earliest of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Owner with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and
|
(c) |
in the case of any other type of total loss, on the date (or the most likely date) on which it reasonably appears to the Lender that the event constituting the total loss occurred; and
|
1.3 |
Construction of certain terms
|
2.1 |
Commitment to Lend
|
2.2 |
Conditions Precedent to Lend
|
(a) |
The documents and evidence described in Part A and Part B of Schedule 2 hereto;
|
(b) |
the Drawdown Notice in the form set out in
Schedule 1
hereto not later than 11.00 a.m. (London time) two (2) business days prior to the Drawdown Date, except as
the Lender may otherwise permit in writing;
|
(c) |
the Owner Guarantee duly executed by Owner A and the Emperor Guarantee by Emperor on or prior to the Drawdown Date.
|
5.1 |
Voluntary prepayment
|
5.2 |
Final Repayment Date
|
(i) |
if either Ship is sold on or before the date on which the sale is completed by delivery of the relevant Ship to the buyer;
|
(b) |
the amount of $4,750,000 until 29 September 2017, if Tranche A (as defined in the Senior Agreement) is drawn down by Owner A under the Senior Agreement.
|
5.4 |
No reborrowing
|
5.5 |
Extension of facility
|
7.2 |
The Borrower undertakes that it shall procure that no substantial change is made to the corporate structure of either Owner from that carried on at the date of this Agreement.
|
7.3 |
The Borrower undertakes that it shall procure that no substantial change is made to the general nature of the business of either Owner from that carried on at the date of this Agreement.
|
7.5 |
The Borrower shall not and it shall procure Owner A shall not, whether by a document, by conduct, by acquiescence or in any other way (except as the Lender may otherwise permit in writing):
|
(b) |
release, waive, suspend or subordinate or permit to be lost or impaired any interest or right forming part of or relating to the MOA;
|
(d) |
rescind or terminate the MOA or treat itself as discharged or relieved from further performance of any of its obligations or liabilities under the MOA.
|
7.6 |
The Borrower undertakes that it shall procure that each Owner executes and, where applicable, registers on, in the case of Owner A, the Delivery Date and, in the case of Owner B, the date of the Deed of Amendment and Restatement, the Mortgage and the General Assignment in respect of Ship B and that all conditions subsequent specified in Part B of Schedule 2 are satisfied.
|
8.1 |
General
|
8.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
war risks;
|
(c) |
protection and indemnity risks; and
|
(d) |
any other risks against which the Lender considers, having regard to practices and other circumstances prevailing at the relevant time, it would, in the opinion of the Lender, be reasonable for the relevant Owner to insure and which are specified by the Lender by notice to the relevant Owner.
|
(a) |
in Dollars;
|
(b) |
in the case of fire and usual marine risks and war risks, on an agreed value basis in an amount at least the greater of (i) 120 per cent. of the Loan and (ii) the Market Value of the Ship owned by it; and
|
(c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(d) |
in relation to protection and indemnity risks in respect of the full value and tonnage of the Ship owned by it;
|
(e) |
on approved terms; and
|
(f) |
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
(a) |
subject always to paragraph (b), name the relevant Owner as the sole named assured unless the interest of every other named assured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it,
|
(b) |
whenever the Lender requires, name (or be amended to name) the Lender as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Lender but without the Lender thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c) |
name the Lender as sole loss payee with such directions for payment as the Lender may specify;
|
(d) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Lender shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
(e) |
provide that such obligatory insurances shall be primary without right of contribution from other insurances effected by the Lender; and
|
(f) |
provide that the Lender may make proof of loss if the relevant Owner fails to do so.
|
8.5 |
Renewal of obligatory insurances
|
(ii) |
obtain the Lender's approval to the matters referred to in paragraph (i);
|
(b) |
at least 10 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Lender's approval pursuant to paragraph (a); and
|
(c) |
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Lender in writing of the terms and conditions of the renewal.
|
(a) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 8.4;
|
(b) |
they will hold such policies, and the benefit of such insurances, to the order of the Lender in accordance with the said loss payable clause;
|
(c) |
they will advise the Lender immediately of any material change to the terms of the obligatory insurances;
|
(d) |
they will notify the Lender, not less than 10 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the relevant Owner or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Lender of the terms of the instructions; and
|
(e) |
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by it under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of the Ship owned by it or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of the Ship owned by it forthwith upon being so requested by the Lender.
|
8.7 |
Copies of certificates of entry; letters of undertaking
|
(a) |
a certified copy of the certificate of entry for the Ship owned by it;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Lender;
|
(c) |
where required to be issued under the terms of insurance/indemnity provided by that Borrower's protection and indemnity association, a certified copy of each United States of America voyage quarterly declaration (or other similar document or documents) made by the relevant Owner in relation to the Ship owned by it in accordance with the requirements of such protections and indemnity association; and
|
(d) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Ship owned by it.
|
8.8 |
Deposit of original policies
|
8.9 |
Payment of premiums
|
8.10 |
Guarantees
|
8.11 |
Compliance with terms of insurances
|
(a) |
the relevant Owner shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause 8.6(c)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Lender has not given its prior approval;
|
(b) |
the relevant Owner shall not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances;
|
(c) |
the relevant Owner shall make and promptly supply copies to the Lender of all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(d) |
the relevant Owner shall not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
8.12 |
Alteration to terms of insurances
|
8.13 |
Settlement of claims
|
8.14 |
Provision of copies of communications
|
(c) |
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
|
(i) |
the relevant Owner's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii) |
any credit arrangements made between the relevant Owner and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
9.1 |
General
|
9.2 |
Ship's name and registration
|
(b) |
so as to maintain the highest class free of overdue recommendations and conditions, with a classification society which is a member of IACS and acceptable to the Lender; and
|
(c) |
so as to comply with all laws and regulations applicable to vessels registered at ports in the Approved Flag State or to vessels trading to any jurisdiction to which the Ship owned by it may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
|
9.4 |
Classification society undertaking
|
(a) |
to send to the Lender, following receipt of a written request from the Lender, certified true copies of all original class records and any other related records held by the classification society in relation to the Ship owned by it;
|
(b) |
to allow the Lender (or its agents), at any time and from time to time, to inspect the original class and related records of the Ship owned by it at the offices of the classification society and to take copies of them;
|
(c) |
to notify the Lender immediately in writing if the classification society:
|
(i) |
receives notification from the relevant Owner or any person that the relevant Ship's classification society is to be changed; or
|
(ii) |
becomes aware of any facts or matters which may result in a change, suspension, discontinuance, withdrawal or expiry of the relevant Ship's class under the rules or terms and conditions of the Owner's or the relevant Ship's membership of the classification society;
|
(d) |
following receipt of a written request from the Lender:
|
(i) |
to confirm that each Owner is not in default of any of its contractual obligations or liabilities to the classification society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the classification society; or
|
(ii) |
if an Owner is in default of any of its contractual obligations or liabilities to the classification society, to specify to the Lender in reasonable detail the facts and circumstances of such default, the consequences thereof, and any remedy period agreed or allowed by the classification society.
|
9.5 |
Modification
|
9.6 |
Removal of parts
|
9.7 |
Surveys
|
9.8 |
Inspection
|
9.9 |
Prevention of and release from arrest
|
(a) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, the Earnings or the Insurances;
|
(b) |
all taxes, dues and other amounts charged in respect of the Ship owned by it, the Earnings or the Insurances; and
|
(c) |
all other outgoings whatsoever in respect of the Ship owned by it, the Earnings or the Insurances,
|
9.10 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of the relevant Owner;
|
(b) |
not employ the Ship owned by it nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code, the ISPS Code and ISPS Code; and
|
(c) |
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ship owned by it to enter or trade to any zone which is declared a war zone by any government or by the relevant Ship's war risks insurers unless the prior written consent of the Lender has been given and each Owner has (at its expense) effected any special, additional or modified insurance cover which the Lender may require.
|
9.11 |
Provision of information
|
(a) |
the Ship owned by it, its employment, position and engagements;
|
(b) |
the Earnings and payments and amounts due to the master and crew of the Ship owned by it;
|
(c) |
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship owned by it and any payments made in respect of the Ship owned by it;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, either Approved Managers' compliance and the compliance of the Ship with the ISM Code and the ISPS Code,
|
9.12 |
Notification of certain events
|
(a) |
any casualty which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requirement, condition or overdue recommendation made by any insurer or classification society or by any competent authority which is not complied with within the time limits imposed by that insurer or classification society or authority;
|
(d) |
any arrest or detention of the Ship owned by it, any exercise or purported exercise of any lien on the Ship or its Earnings or any requisition of the Ship owned by it for hire;
|
(e) |
any intended dry docking of the Shi owned by it p;
|
(f) |
any Environmental Claim made against the relevant Owner or in connection with the Ship owned by it, or any Environmental Incident;
|
(g) |
any claim for breach of the ISM Code or the ISPS Code being made against the relevant Owner, the Approved Managers or otherwise in connection with the Ship owned by it; or
|
(h) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
(a) |
let the Ship owned by it on demise charter for any period;
|
(b) |
enter into any time or consecutive voyage charter in respect of the Ship owned by it for a term which exceeds, or which by virtue of any optional extensions may exceed, 13 months;
|
(c) |
enter into any charter in relation to the Ship owned by it under which more than, in the case of time charters, 2 and, in the case voyage charters, 4 months' hire (or the equivalent) is payable in advance;
|
(d) |
charter the Ship owned by it otherwise than on bona fide arm's length terms at the time when the Ship owned by it is fixed;
|
(e) |
appoint a manager of the Ship owned by it other than the Approved Managers or agree to any alteration to the terms of the Approved Managers' appointment;
|
(f) |
de-activate or lay up the Ship owned by it; or
|
9.14 |
Notice of Mortgage
|
9.15 |
Sharing of Earnings
|
9.16 |
ISPS Code
|
(a) |
procure that the Ship owned by it and the company responsible for the relevant Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain for the Ship owned by it an ISSC; and
|
(c) |
notify the Lender immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
(a) |
Any of the Finance Documents becomes unenforceable; or
|
(b) |
Either Owner fails to execute and, where applicable, register the Mortgage and the General Assignment in the case of Owner A on the Delivery Date and, in the case of Owner B, on the date of the Deed of Amendment and Restatement.
|
10.10 |
Event of Default under the Note
|
10.11 |
Material adverse change
|
(b) |
declare that the Loan is payable on demand, whereupon it shall immediately become payable on demand by the Lender; and/or
|
(c) |
take any other action which, as a result of the Event of Default or any notice served under paragraph (a) and (b), the Lender is entitled to take under any Finance Document or any applicable law.
|
11.1 |
Prepayment fee
|
12.1 |
Normal order of application
|
(a) |
FIRST: in or towards payment pro rata of any unpaid fees, costs and expenses of the Lender under the Finance Documents;
|
(b) |
SECONDLY: in or towards payment pro rata of any accrued interest or commission due but unpaid under this Agreement;
|
(d) |
FOURTHLY: in or towards payment pro rata of any other amounts due but unpaid under any Finance Document;
|
(e) |
FIFTHLY: in or towards payment pro rata of any unpaid fees, costs and expenses of the Lender under the Note;
|
(f) |
SIXTHLY: in or towards payment pro rata of any accrued interest or commission due but unpaid under the Note;
|
(g) |
SEVENTHLY: in or towards payment pro rata of any principal due but unpaid under the Note;
|
(h) |
EIGHTHLY: in or towards payment pro rata of any other amounts due but unpaid under the Note;
|
(i) |
NINTHLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Lender, by notice to the Borrower, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 12.1(a), 12.1(b), 12.1(c) and 12.1(d); and
|
(j) |
TENTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
12.2 |
Variation of order of application
|
12.3 |
Notice of variation of order of application
|
12.4 |
Appropriation rights overridden
|
17.1 |
The headings of the clauses of this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
|
THE LENDER
|
||
SIGNED
by Panos Doritis
|
)
|
/s/ Panos Doritis
|
for and behalf of)
|
)
|
|
JELCO DELTA HOLDING CORP.
|
)
|
|
in the presence of: Theodoros Alexandrakos
|
||
THE BORROWER
|
||
SIGNED
by
Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
for and behalf of)
|
)
|
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
|
in the presence of: Theodoros Alexandrakos
|
||
|
||
|
1 |
A duly executed original of the Intercreditor Deed.
|
2 |
Copies of the certificate of incorporation and constitutional documents of the Borrower and each Owner and any company registration documents in respect of the Borrower and each Owner (including, without limitation, any corporate register excerpts) required by the Lender.
|
3 |
Copies of resolutions of the directors of the Borrower and each Owner authorising the execution of each of the Finance Documents to which each is a party and, in the case of the Borrower, authorising named representatives to give the Drawdown Notices and other notices under this Agreement.
|
4 |
The original of any power of attorney under which any Finance Document is executed on behalf of the Borrower and each Owner.
|
1 |
A duly executed original of the Mortgage, the General Assignment (and of each document to be delivered by each of them), each in respect of the Relevant Ship and the Relevant Owner.
|
2 |
An original of the Mortgage Addendum in respect of Ship A and of each document to be delivered under or pursuant to it together with documentary evidence that the Mortgage Addendum has been duly recorded in accordance with the laws of the jurisdiction of the Approved Flag of Ship A.
|
3 |
Documentary evidence that:
|
(a) |
Ship A has been unconditionally delivered by the Seller to, and accepted by, Owner A under the MOA and the Contract Price payable under the MOA (in addition to the part to be financed by the Loan) has been duly paid in full (together with a copy of each of the documents delivered by the Seller to Owner A under the MOA (including but not limited to, the bill of sale, the commercial invoice and the protocol of delivery and acceptance);
|
(b) |
The Relevant Ship has been registered in the name of the Relevant Owner under the Approved Flag;
|
(c) |
the Relevant Ship is in the absolute and unencumbered ownership of the Relevant Owner save as contemplated by the Finance Documents and the Senior Finance Documents;
|
(d) |
the Relevant Ship maintains the highest class with a first class classification society which is a member of IACS and acceptable to the Lender as the Lender may approve free of all recommendations and conditions of such classification society;
|
(e) |
the Mortgage has been duly registered or recorded against the Relevant Ship as a valid second preferred or, as the case may be, priority mortgage in accordance with the laws of the Approved Flag State; and
|
(f) |
the Relevant Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with.
|
4 |
Documents establishing that the Relevant Ship will, as from the relevant Delivery Date or the date of the Deed of Amendment and Restatement (as the case may be), be managed by the Approved Managers on terms acceptable to the Lenders, together with:
|
(a) |
each Approved Manager's Undertaking relative thereto;
|
(b) |
copies of the Approved Managers' Document of Compliance, the Relevant Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Lender requires); and
|
(c) |
a copy of the ISSC in respect of the Relevant Ship.
|
Ship name
|
Type
|
GRT
|
NRT
|
Approved Flag
|
Approved Flag
|
Approved Classification Society
|
Approved Classification
|
Approved Commercial Manager
|
Approved Technical Manager
|
"PARTNERSHIP"
|
Bulk Carrier
|
93,175
|
60,453
|
Marshall Islands
|
Marshall Islands
|
Korean Register of
Shipping
|
+KRS1
|
Fidelity Marine and Seanergy Management (as the case may be)
|
V. Ships
|
"CHAMPIONSHIP"
|
Bulk Carrier
|
93,196
|
59,298
|
Liberia
|
Liberia
|
Bureau Veritas
|
I* Hull *Mach
|
Fidelity Marine and Seanergy Management (as the case may be)
|
V. Ships
|
Clause
|
Page
|
|
1
|
INTERPRETATION
|
1
|
2
|
GUARANTEE
|
2
|
3
|
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
2
|
4
|
EXPENSES
|
3
|
5
|
ADJUSTMENT OF TRANSACTIONS
|
3
|
6
|
PAYMENTS
|
3
|
7
|
INTEREST
|
3
|
8
|
SUBORDINATION
|
4
|
9
|
ENFORCEMENT
|
4
|
10
|
REPRESENTATIONS AND WARRANTIES
|
4
|
11
|
UNDERTAKINGS
|
5
|
12
|
JUDGMENTS
|
7
|
13
|
SUPPLEMENTAL
|
7
|
14
|
NOTICES
|
8
|
15
|
INVALIDITY OF A CONVERTIBLE PROMISSORY NOTE
|
9
|
16
|
GOVERNING LAW AND JURISDICTION
|
9
|
EXECUTION PAGE
|
11
|
(1) |
EMPEROR HOLDING LTD.
, a corporation incorporated under the laws of the Republic of the Marshall Islands, whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "
Guarantor
"); and
|
(2) |
JELCO DELTA HOLDING CORP.
, a corporation incorporated under the laws of the Republic of the Marshall Islands, whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "
Holder
", which expression includes its successors and assigns).
|
(A) |
Seanergy Maritime Holdings Corp. (the "
Maker
") issued in favour of the Holder two convertible promissory notes originally dated 12 March 2015 and 7 September 2015 (as further amended, the "
Original Notes
").
|
(B) |
The Maker has issued in favour of the Holder a further convertible promissory note bearing the same date as this Guarantee (the "
New Note
", together with the Original Notes the "
Notes
" and each individually a "
Note
").
|
(C) |
The Guarantor is a wholly owned subsidiary of the Maker and commercially benefits from the Notes as the Notes provide additional liquidity to the Maker ensuring that it can meet its current obligations while retaining liquidity available to fund the working capital and other financial requirements of the Guarantor.
|
(D) |
It is a condition to the Holder subscribing for the New Note and giving its consent to the amendment the Original Notes that the Guarantor shall execute and deliver to the Holder this Guarantee.
|
1 |
INTERPRETATION
|
1.1 |
Defined expressions
|
1.2 |
Construction of certain terms
|
2 |
GUARANTEE
|
2.1 |
Guarantee and indemnity
|
(a) |
guarantees the due and punctual payment of all amounts payable by the Maker under or in connection with each of the
N
otes;
|
(b) |
undertakes to pay to the Holder, on the Holder's demand, any such amount which is not paid by the Maker when payable; and
|
(c) |
fully indemnifies the Holder on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the Holder as a result of or in connection with any obligation or liability guaranteed by the Guarantor being or becoming unenforceable, invalid, void or illegal; and the amount recoverable under this indemnity shall be equal to the amount which the Holder would otherwise have been entitled to recover.
|
2.2 |
No limit on number of demands
|
2.3 |
Release of Guarantee
|
3 |
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3.1 |
Principal and independent debtor
|
3.2 |
Waiver of rights and defences
|
(a) |
any amendment or supplement being made to any of the
N
otes;
|
(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, any of the
N
otes;
|
(c) |
any release or loss (even though negligent) of any right or security interest created by or in relation to any of the
N
otes;
|
(d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right or security interest, including a failure to realise for its full market value an asset covered by such a security interest; or
|
(e) |
any other security interest now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to register it.
|
4 |
EXPENSES
|
4.1 |
Costs of preservation of rights, enforcement etc.
|
5 |
ADJUSTMENT OF TRANSACTIONS
|
5.1 |
Reinstatement of obligation to pay
|
6 |
PAYMENTS
|
6.1 |
Method of payments
|
(a) |
in immediately available funds;
|
(b) |
to such account as the Holder may from time to time notify to the Guarantor;
|
(c) |
without any form of set‑off, cross‑claim or condition; and
|
(d) |
free and clear of any tax deduction except a tax deduction which the Guarantor is required by law to make.
|
6.2 |
Grossing-up for taxes
|
7 |
INTEREST
|
7.1 |
Accrual of interest
|
7.2 |
Calculation of interest
|
7.3 |
Guarantee extends to interest payable under each
N
ote
|
8 |
SUBORDINATION
|
8.1 |
Subordination of rights of Guarantor
|
(a) |
claim, or in a bankruptcy of the Maker prove for, any amount payable to the Guarantor by the Maker, whether in respect of this Guarantee or any other transaction;
|
(b) |
take or enforce any security interest for any such amount;
|
(c) |
claim to set-off any such amount against any amount payable by the Guarantor to the Maker; or
|
(d) |
claim any subrogation or other right in respect of any of the
N
otes or any sum received or recovered by the Holder under any of the
N
otes.
|
9 |
ENFORCEMENT
|
9.1 |
No requirement to commence proceedings against the Maker
|
9.2 |
Conclusive evidence of certain matters
|
(a) |
any judgment or order of a court in England or the State of New York or of the United States of America or the Marshall Islands or Greece in connection with any of the
N
otes; and
|
(b) |
any statement or admission of the Maker in connection with any of the
N
otes,
|
10 |
REPRESENTATIONS AND WARRANTIES
|
10.1 |
General
|
10.2 |
Status
|
10.3 |
Corporate power
|
(a) |
to execute this Guarantee; and
|
(b) |
to make all the payments contemplated by, and to comply with, this Guarantee.
|
10.4 |
Consents in force
|
10.5 |
Legal validity and effective Security Interests
|
(a) |
constitutes the Guarantor's legal, valid and binding obligations enforceable against the Guarantor in accordance with its terms and subject any relevant insolvency laws affecting creditors' rights generally; and
|
(b) |
creates legal, valid and binding Security Interests enforceable in accordance with its terms over all the assets to which it relates.
|
10.6 |
No conflicts
|
(a) |
any law or regulation; or
|
(b) |
the constitutional documents of the Guarantor; or
|
(c) |
any contractual or other obligation or restriction which is binding on the Guarantor or any of its assets.
|
10.7 |
No withholding taxes
|
10.8 |
No default
|
10.9 |
No litigation
|
11 |
UNDERTAKINGS
|
11.1 |
General
|
11.2 |
Creditor notices
|
11.3 |
Consents
|
(a) |
for the Guarantor to perform its obligations under this Guarantee;
|
(b) |
for the validity or enforceability of this Guarantee,
|
11.4 |
Maintenance of Security Interests
|
(a) |
at its own cost, do all that it reasonably can to ensure that this Guarantee validly creates the obligations and the Security Interests which it purports to create; and
|
(b) |
without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol this Guarantee with any court or authority in all relevant jurisdictions, pay any stamp, registration or similar tax in all relevant jurisdictions in respect of this Guarantee, give any notice or take any other step which may be or become necessary or desirable for this Guarantee to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.5 |
Notification of litigation
|
11.6 |
Notification of default
|
(a) |
the occurrence of an Event of Default under any of the
N
otes; or
|
(b) |
any matter which indicates that an Event of Default under any of the Notes may have occurred
,
|
11.7 |
Maintenance of status
|
11.8 |
Negative pledge
|
11.9 |
No disposal of assets, change of business
|
(a) |
transfer, lease or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or
|
(b) |
make any substantial change to the nature of its business from that existing at the date of this Guarantee.
|
11.10 |
No merger etc.
|
12 |
JUDGMENTS
|
12.1 |
Judgments and orders relating to a
N
ote
|
13 |
SUPPLEMENTAL
|
13.1 |
Continuing guarantee
|
13.2 |
Rights cumulative, non-exclusive
|
13.3 |
No impairment of rights under Guarantee
|
13.4 |
Severability of provisions
|
13.5 |
Guarantee not affected by other security
|
13.6 |
Applicability of provisions of Guarantee to other security interests
|
13.7 |
Applicability of provisions of Guarantee to other rights
|
13.8 |
Guarantor's approval of the Notes
|
13.9 |
Third party rights
|
14 |
NOTICES
|
14.1 |
Notices to Guarantor
|
14.2 |
Application of certain provisions of the New Note
|
14.3 |
Validity of demands
|
(a) |
on the date on which the amount to which it relates is payable by the Maker under the relevant Note;
|
(b) |
at the same time as the service of a notice under the relevant
N
ote,
|
14.4 |
Notices to Holder
|
15 |
INVALIDITY OF A NOTE
|
15.1 |
Invalidity of a
N
ote
|
(a) |
a
N
ote now being or later becoming, with immediate or retrospective effect, void, illegal, unenforceable or otherwise invalid for any other reason whatsoever, whether of a similar kind or not; or
|
(b) |
without limiting the scope of paragraph (a), a bankruptcy of the Maker, the introduction of any law or any other matter resulting in the Maker being discharged from liability under any of the
N
otes, or any of the
N
otes ceasing to operate (for example, by interest ceasing to accrue);
|
16 |
GOVERNING LAW AND JURISDICTION
|
16.1 |
New York law
|
16.2 |
Holder' rights unaffected
|
16.3 |
Meaning of "proceedings"
|
EXECUTED AND DELIVERED AS A DEED
|
)
|
|
by
EMPEROR HOLDING LTD.
|
)
|
|
acting by Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
expressly authorised in accordance with the
|
)
|
|
laws of the Republic of the Marshall Islands
|
)
|
|
by virtue of a power of attorney granted
|
)
|
|
by
EMPEROR HOLDING LTD.
|
)
|
|
on 27 September 2017
|
)
|
|
such execution being witnessed by
|
)
|
|
Maria Moschopoulou
|
/s/ Maria Moschopoulou
|
EXECUTED AND DELIVERED AS A DEED
|
)
|
|
by
JELCO DELTA HOLDING CORP.
|
)
|
|
acting by Alastair Macdonald
|
)
|
/s/ Alastair Macdonald
|
expressly authorised in accordance with the
|
)
|
|
laws of the Republic of the Marshall Islands
|
)
|
|
by virtue of a power of attorney granted
|
)
|
|
by
JELCO DELTA HOLDING CORP.
|
)
|
|
on 27 September 2017
|
)
|
|
such execution being witnessed by
|
)
|
|
Karen Campbell
|
/s/ Karen Campbell
|