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) |
Todd E. Mason
Thompson Hine LLP
335 Madison Avenue
New York, New York 10017
(212) 344-5680 (telephone 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
|
$5,750,000
|
$696.90
|
(3)
|
(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.
|
(3) |
Previously paid.
|
Per Common Share
|
Total
|
|||||||
Public offering price
|
$
|
$
|
||||||
Underwriting discount and commissions
|
$
|
$
|
||||||
Proceeds to the Company, before expenses
|
$
|
$
|
Fearnley Securities
|
Page
|
|
ABOUT THIS PROSPECTUS
|
ii
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
ii
|
ENFORCEABILITY OF CIVIL LIABILITIES
|
iv
|
PROSPECTUS SUMMARY
|
1
|
THE OFFERING
|
9
|
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
|
10
|
RISK FACTORS
|
15
|
USE OF PROCEEDS
|
36
|
DIVIDEND POLICY
|
37
|
PRICE RANGE OF OUR COMMON SHARES
|
38
|
CAPITALIZATION
|
39
|
DILUTION
|
40
|
BUSINESS
|
41
|
THE INTERNATIONAL DRYBULK INDUSTRY
|
61
|
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
|
111
|
EXPENSES RELATING TO THIS OFFERING
|
114
|
LEGAL MATTERS
|
114
|
EXPERTS
|
114
|
WHERE YOU CAN FIND MORE INFORMATION
|
114
|
DOCUMENTS INCORPORATED BY REFERENCE
|
115
|
· |
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(2)
|
Knightship
(3)
|
2010
|
178,978
|
LIB
|
Hyundai
|
Spot
|
Lordship
|
2010
|
178,838
|
LIB
|
Hyundai
|
Time Charter(4)
|
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 (5)
|
2011
|
56,884
|
MI
|
CSC Jinling
|
Spot
|
Average Age/Total dwt:
|
9.6 years
|
1,625,763
|
Vessel to be Delivered
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
Fellowship (5)
|
2010
|
179,701
|
MI
|
Daewoo
|
Time Charter (6)
|
Average Age/Total dwt (7)
|
9.6 years
|
1,748,580
|
(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) |
On June 29, 2018 we entered into a financing arrangement according to which this vessel was sold to and leased back on a bareboat basis from a major Chinese leasing institution for an eight year period. We have a purchase obligation at the end of the eight year period and we further have the option to repurchase the vessel at any time following the second anniversary of the bareboat charter.
|
(3) |
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.
|
(4) |
The Company has entered in September 2018 into a definitive agreement with unaffiliated third party for the sale of the Guardianship.
|
(5) |
This vessel is expected to be delivered to Seanergy in November 2018. Please see "Prospectus Summary - Recent Developments".
|
(6) |
This vessel is being chartered by Swissmarine S.A. and was delivered to the charterer on February 6, 2017 for a period of employment of about 10 months to about 13 months at a gross daily rate of $17,250
|
(7) |
Pro-forma fleet, following the delivery of the
Fellowship
to Seanergy and the
Guardianship
to its new owners.
|
· |
Focus on Capesize Vessels.
Our fleet currently consists of nine Capesize vessels and one Supramax vessel. Following the completion of the aforementioned Capesize vessel acquisition and Supramax vessel disposal, our fleet will consist of ten Capesize vessels
. Therefore, on a pro-forma basis, our Company will be the only pure-play Capesize publicly-listed shipping company worldwide. We believe our focus on just one asset class (Capesize vessels) in the drybulk space provide us with operational and commercial expertise in this market. We believe, further, that our focus on the Capesize market will attract a broader and deeper shareholder base to benefit from the transport of iron ore and coal, to gain exposure to the industries and economies directly affected by the trade of iron ore and coal (including China and Brazil), and to minimize their exposure to the segments of the drybulk market that may be influenced from a much wider range of variables than the trades of iron ore and coal.
According to Karatzas Marine Advisors & Co., seaborne transportation for iron ore and coal has increased by 1.6% in 2016, 4.0% in 2017 and is expected to increase by 3.8% in 2018. In addition,
the
newbuilding orderbook for Capesize vessels currently represents approximately 3% of the current fleet, a significant reduction from 35.4%, the average size of the newbuilding orderbook of the fleet for the last 10 years. As seen in the graph below, relative to our publicly traded drybulk owner peers, the Company has distinguished itself in the market as a dedicated provider of Capesize tonnage.
|
· |
Focus on Quality and Commercially Competitive Tonnage.
Our fleet consists of modern-design Capesize vessels with large cargo carrying capacity that are expected to be fully compliant with existing and expected regulations. We believe our
modern-design vessels built at reputable Korean and Japanese shipyards are preferred by charterers, as they require lower maintenance and typically have lower operating expenses than older vessels.
|
· |
Experienced Management
. Our
Company's leadership has considerable depth of shipping industry expertise. Mr. Tsantanis, our Chairman, Chief Executive Officer, brings more than 20 years of experience in shipping and finance and has held senior management positions in prominent shipping companies prior to
leading
our Company. Mr. Gyftakis, our Chief Financial Officer, has more than 12 years of experience in senior positions in the shipping finance industry. The Company's Chief Operations Officer, Chief Technical Officer and General Counsel have a combined experience of 53 years in senior positions.
|
· |
Access to off market sale and purchase opportunities and ability of prompt execution.
Our past track record, the strength and expertise of our management team, our commercial expertise and reputation in the marketplace, and our transparent and public structure may allow us to source off-market secondhand vessels and to build on our strong track record of executing such transactions.
|
· |
Access to Attractive Chartering Opportunities.
The Company's senior management in combination with Fidelity, our commercial manager, has established strong global relationships with international miners, charterers and brokers. We believe that our relationships with these counterparties should provide us with access to attractive chartering opportunities. Furthermore, we aim to maintain
o
ur fleet at a level that meets or exceeds stringent industry standards as we believe that owning a modern and well-maintained fleet provides us with a competitive advantage in securing favorable time and spot charters. However, it is possible that the daily rates we receive on future time and spot charters may be lower depending on market fluctuations. As a demonstration of our ability to source attractive employment opportunities two of our vessels have recently entered into long-term time charters with a duration of five years. As part of the agreements, the charterers have agreed to cover the costs for the installation of exhaust gas systems, or scrubbers, on our vessels in order to ensure compliance with the International Maritime Organization's Sulphur limit rules that will be in effect after January 1, 2020. We believe that the willingness of our charterers to invest in our vessels is a testament to the superior employment opportunities enjoyed by our fleet.
|
· |
Expanding Our Fleet Through Accretive Acquisitions
.
We aim to acquire high quality Capesize dry bulk carriers through timely acquisitions at prices that are attractive when compared to the vessels' future earnings potential. We currently view the Capesize vessel class as providing the most attractive returns in the dry bulk space given existing vessel price levels. In evaluating acquisitions, we 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, vessel condition and technical specifications, expected remaining useful life, as well as the overall strategic positioning of our fleet and customers. For vessels acquired with charters attached, we also consider the credit quality of the charterer and duration and terms of the contracts in place.
|
· |
Positioned to Capitalize on an Improving Rate Environment via Spot Market Exposure
. We believe our current fleet is optimized to capture increasing vessel revenues because of an upward trend in spot rates. Currently our entire fleet with the exception of two vessels is employed in the spot market under agreements that allow Seanergy to benefit from market improvements. The average of the five time charter routes for the Baltic Capesize Index, or the BCI TCE, the generally agreed upon proxy for spot Capesize shipping rates, has recently increased significantly by 5,154% from the record low level of $485 per day on March 17, 2016 to $14,959 per day on November 7, 2018. The average daily BCI TCE of the last fifteen years from November 2008 until October 2018 is $38,174. As spot charter rates revert to long-term average levels, we expect our chartering strategy to shift towards employing a greater proportion of our fleet under long term fixed-rate contracts in order to minimize downside risk. Because the spot market is volatile, there can be no assurance that the recent increases in the drybulk charter market will continue.
|
· |
Building a Modern-design Capesize Fleet with Critical Mass
. In today's competitive world, shipping companies with larger fleets can benefit from economies of scale by reducing operating expenses per vessel due to volume price discounting; larger fleets also command the preference of the charterers as they can also benefit from the economies of scale themselves. More importantly, shipping companies with larger fleets have greater access to financing on competitive terms from shipping banks and lessors, as well as from institutional investors and the capital markets. The graph shown above under "Competitive Strengths", illustrates our Company's distinct position in the marketplace now as it has gained critical mass in terms of deadweight tonnage.
|
· |
dry bulk fleet growth has declined every year from 2011 to 2016, while 2017 fleet growth of 2.20% was the lowest of the past 17 years. Given that the vessel orderbook is currently at a low level and the long lead-time involved in new vessel orders, fleet growth is expected to remain below 3% until 2020
;
|
· |
global economic activity and industrial production continues to rely on raw materials and commodity consumption. World dry bulk trade is expected to increase by 2.5% in 2018 and 2.4% in 2019;
|
· |
strong steel profit margins support high demand for high-grade iron ore concentrates, which are mainly exported out of Brazil, Australia and South Africa. Mining capacity expansion by the world's largest mining companies to fulfill this demand has supported increasing demand for Capesize dry bulk vessels over the past years, a trend which is expected to continue; Vale's, BHP Billiton's and Rio Tinto's production growth for the first 9 months of 2018 was 3.8%, 6.3% and 4.8%, respectively;
|
· |
in 2017 and 2018, there has been a significant rise in vessel prices compared to the levels seen in 2016. Prices for 5-year and 10-year old 180,000 dwt Capesize vessels averaged approximately $24.5 and $13.8 million, respectively, in 2016, while prices in October 2018 stood at $36 million and $25 million, respectively. As a matter of comparison, the fifteen year average for 5-year and 10-
year old Capesize
vessels stand at $43 million and $31 million respectively, even when excluding years 2006-2008, considered years of a super cycle. Despite the significant increase of 80%, we believe there is upside potential since current asset prices are materially below the fifteen-year historical average;
|
· |
as of October 24, 2018, the average of the BCI TCE was $19,025 per day, 157% higher than the average level in 2016; the fifteen-year average for short-term Capesize vessel time-charters was approximately $38,000 per day, or $26,000 per day when the years of the 2006-2008 supercycle are excluded. The present Capesize freight market is materially lower than the historical average and we believe further upside potential for the market "reverting to the mean";
|
· |
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
;
|
· |
charterers' concerns about environmental and safety standards shifting their preference toward modern vessels that are owned and operated by reputable and financially stable shipowners
.
|
Common shares presently outstanding
|
38,193,348 common shares(1)
|
|
Securities offered by us
|
5,600,000 common shares (6,440,000 common shares if the underwriters exercise their option to purchase additional shares in full)
|
|
Common shares to be outstanding immediately after this offering
|
43,793,348 common shares (44,633,348 common shares if the underwriters exercise their option to purchase additional shares in full
|
|
Use of proceeds
|
We estimate that we will receive net proceeds of approximately $ million, and approximately $ million if the underwriters exercise their option to purchase additional shares in full, after deducting underwriting discounts and commissions and estimated expenses payable by us.
We intend to use all of the net proceeds of this offering for general corporate purposes which may include, among other things, prepaying debt or partially funding the acquisition of modern Capesize drybulk vessels in accordance with our growth strategy. However, we do not currently have definitive plans for any debt prepayments nor have we identified any potential acquisitions, and we can provide no assurance that we will be able to complete any debt prepayment or the acquisition of any vessel that we are able to identify. See "Use of Proceeds."
|
|
Risk factors
|
Investing in our securities involves a high degree of risk. See "Risk Factors" below on page 15 and in our Annual Report on Form 20-F for the year ended December 31, 2017, 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 representatives to the underwriters, 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 days after the date of the closing of this offering.
|
Year Ended December 31,
|
||||||||||||||||||||
2017
|
2016
|
2015
|
2014
|
2013
|
||||||||||||||||
Statement of Income Data:
|
||||||||||||||||||||
Vessel revenue, net
|
$
|
74,834
|
$
|
34,662
|
$
|
11,223
|
$
|
2,010
|
$
|
23,079
|
||||||||||
Voyage expenses
|
(34,949
|
)
|
(21,008
|
)
|
(7,496
|
)
|
(1,274
|
)
|
(8,035
|
)
|
||||||||||
Vessel operating expenses
|
(19,598
|
)
|
(14,251
|
)
|
(5,639
|
)
|
(1,006
|
)
|
(11,086
|
)
|
||||||||||
Voyage expenses - related party
|
-
|
-
|
-
|
(24
|
)
|
(313
|
)
|
|||||||||||||
Management fees - related party
|
-
|
-
|
-
|
(122
|
)
|
(743
|
)
|
|||||||||||||
Management fees
|
(1,016
|
)
|
(895
|
)
|
(336
|
)
|
-
|
(194
|
)
|
|||||||||||
General and administration expenses
|
(5,081
|
)
|
(4,134
|
)
|
(2,804
|
)
|
(2,987
|
)
|
(3,966
|
)
|
||||||||||
General and administration expenses - related party
|
-
|
-
|
(70
|
)
|
(309
|
)
|
(412
|
)
|
||||||||||||
Loss on bad debts
|
-
|
-
|
(30
|
)
|
(38
|
)
|
-
|
|||||||||||||
Amortization of deferred dry-docking costs
|
(870
|
)
|
(556
|
)
|
(38
|
)
|
-
|
(232
|
)
|
|||||||||||
Depreciation
|
(10,518
|
)
|
(8,531
|
)
|
(1,865
|
)
|
(3
|
)
|
(982
|
)
|
||||||||||
Impairment loss for vessels and deferred charges
|
-
|
-
|
-
|
-
|
(3,564
|
)
|
||||||||||||||
Gain on disposal of subsidiaries
|
-
|
-
|
-
|
-
|
25,719
|
|||||||||||||||
Gain on restructuring
|
-
|
-
|
-
|
85,563
|
-
|
|||||||||||||||
Operating income / (loss)
|
2,802
|
(14,713
|
)
|
(7,055
|
)
|
81,810
|
19,271
|
|||||||||||||
Interest and finance costs
|
(12,277
|
)
|
(7,235
|
)
|
(1,460
|
)
|
(1,463
|
)
|
(8,389
|
)
|
||||||||||
Interest and finance costs - related party
|
(5,122
|
)
|
(2,616
|
)
|
(399
|
)
|
-
|
-
|
||||||||||||
Gain on debt refinancing
|
11,392
|
-
|
-
|
-
|
-
|
|||||||||||||||
Interest and other income
|
47
|
20
|
-
|
14
|
13
|
|||||||||||||||
Loss on interest rate swaps
|
-
|
-
|
-
|
-
|
(8
|
)
|
||||||||||||||
Foreign currency exchange (losses) / gains, net
|
(77
|
)
|
(45
|
)
|
(42
|
)
|
(13
|
)
|
19
|
|||||||||||
Total other expenses, net
|
(6,037
|
)
|
(9,876
|
)
|
(1,901
|
)
|
(1,462
|
)
|
(8,365
|
)
|
||||||||||
Net (loss) / income before taxes
|
(3,235
|
)
|
(24,589
|
)
|
(8,956
|
)
|
80,348
|
10,906
|
||||||||||||
Income (taxes) / benefit
|
-
|
(34
|
)
|
-
|
-
|
1
|
||||||||||||||
Net (loss) / income
|
$
|
(3,235
|
)
|
$
|
(24,623
|
)
|
$
|
(8,956
|
)
|
$
|
80,348
|
$
|
10,907
|
|||||||
Net (loss) / income per common share
|
||||||||||||||||||||
Basic
|
$
|
(0.09
|
)
|
$
|
(1.20
|
)
|
$
|
(0.83
|
)
|
$
|
30.06
|
$
|
4.56
|
|||||||
Weighted average common shares outstanding
|
||||||||||||||||||||
Basic
|
35,845,890
|
20,553,007
|
10,773,404
|
2,672,945
|
2,391,628
|
|||||||||||||||
As of December 31,
|
||||||||||||||||||||
2017
|
2016
|
2015
|
2014
|
2013
|
||||||||||||||||
Balance Sheet Data:
|
||||||||||||||||||||
Cash and cash equivalents and restricted cash
|
$
|
11,039
|
$
|
15,908
|
$
|
3,354
|
$
|
2,873
|
$
|
3,075
|
||||||||||
Total current assets
|
19,498
|
22,329
|
8,278
|
3,207
|
66,350
|
|||||||||||||||
Vessels, net
|
254,730
|
232,109
|
199,840
|
-
|
-
|
|||||||||||||||
Total assets
|
275,705
|
257,534
|
209,352
|
3,268
|
66,350
|
|||||||||||||||
Total current liabilities
|
34,460
|
21,230
|
9,250
|
592
|
157,045
|
|||||||||||||||
Long-term debt, net of current portion and deferred finance costs
|
175,805
|
198,497
|
176,787
|
-
|
-
|
|||||||||||||||
Due to related parties, noncurrent
|
17,342
|
5,878
|
-
|
-
|
-
|
|||||||||||||||
Long-term portion of convertible promissory notes
|
6,785
|
1,097
|
31
|
-
|
-
|
|||||||||||||||
Total Stockholders' equity / (deficit)
|
$
|
41,313
|
$
|
30,832
|
$
|
23,284
|
$
|
2,676
|
$
|
(90,695
|
)
|
Year Ended December 31,
|
||||||||||||||||||||
2017
|
2016
|
2015
|
2014
|
2013
|
||||||||||||||||
Cash Flow Data:
|
||||||||||||||||||||
Net cash provided by / (used in) operating activities
|
$
|
2,782
|
$
|
(15,339
|
)
|
$
|
(4,737
|
)
|
$
|
(14,858
|
)
|
$
|
1,030
|
|||||||
Net cash (used in) / provided by investing activities
|
(32,992
|
)
|
(40,779
|
)
|
(201,684
|
)
|
105,895
|
993
|
||||||||||||
Net cash provided by / (used in) financing activities
|
25,341
|
68,672
|
206,902
|
(91,239
|
)
|
(5,246
|
)
|
|||||||||||||
Net increase / (decrease) in cash and cash equivalents and restricted cash
|
(4,869
|
)
|
12,554
|
481
|
(202
|
)
|
(3,223
|
)
|
Six-months period ended
June 30,
|
||||||||
(Amounts in thousands of U.S. dollars, except for share and per share data.)
|
2018
|
2017
|
||||||
Statement of Income Data:
|
||||||||
Vessel revenue, net
|
38,142
|
31,694
|
||||||
Voyage expenses
|
(17,732
|
)
|
(16,629
|
)
|
||||
Vessel operating expenses
|
(10,310
|
)
|
(8,796
|
)
|
||||
Management fees
|
(528
|
)
|
(488
|
)
|
||||
General and administration expenses
|
(3,003
|
)
|
(2,269
|
)
|
||||
Amortization of deferred dry-docking costs
|
(401
|
)
|
(430
|
)
|
||||
Depreciation
|
(5,499
|
)
|
(4,952
|
)
|
||||
Operating income / (loss)
|
669
|
(1,870
|
)
|
|||||
Other expenses, net:
|
||||||||
Interest and finance costs
|
(8,688
|
)
|
(5,801
|
)
|
||||
Interest and finance costs - related party
|
(4,241
|
)
|
(1,900
|
)
|
||||
Other, net
|
(60
|
)
|
(19
|
)
|
||||
Total other expenses, net
|
(12,989
|
)
|
(7,720
|
)
|
||||
Net loss before income taxes
|
(12,320
|
)
|
(9,590
|
)
|
||||
Income taxes
|
11
|
-
|
||||||
Net loss
|
(12,309
|
)
|
(9,590
|
)
|
||||
Net loss per common share
|
||||||||
Basic
|
(0.33
|
)
|
(0.27
|
)
|
||||
Weighted average common shares outstanding
|
||||||||
Basic
|
36,949,832
|
35,217,339
|
Six-months period ended
June 30,
|
||||||||
2018
|
2017
|
|||||||
Fleet Data:
|
||||||||
Ownership days(1)
|
1,991
|
1,840
|
||||||
Available days(2)
|
1,991
|
1,827
|
||||||
Operating days(3)
|
1,987
|
1,825
|
||||||
Fleet utilization(4)
|
99.8
|
%
|
99.2
|
%
|
||||
Average Daily Results:
|
||||||||
TCE rate(5)
|
$
|
10,272
|
$
|
8,255
|
||||
Daily vessel operating expenses(6)
|
$
|
5,178
|
$
|
4,605
|
(1)
|
Ownership days are the total number of calendar days in a period during which we owned or chartered-in on bareboat basis 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, 2018, we incurred zero off-hire days for vessel surveys. During the six months ended June 30, 2017, we incurred 13 off-hire days for one vessel survey
.
|
(3)
|
Operating days are the number of available days in a period less the aggregate number of days that our vessels are off-hire due to unforeseen circumstances.
Operating days include the days that our vessels are in ballast voyages without having fixed their next employment.
The shipping industry uses operating days to measure the aggregate number of days in a period during which the vessels could actually generate revenues.
During the six months ended June 30, 2018, we incurred four off-hire days due to other unforeseen circumstances. During the six months ended June 30, 2017, we incurred two off-hire days due to other unforeseen circumstances.
|
(4)
|
Fleet utilization is the percentage of time that our vessels were generating revenues, and is determined by dividing operating days by ownership days for the relevant period.
|
(5)
|
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 U.S. 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)
|
2018
|
2017
|
||||||
Net revenues from vessels
|
$
|
38,142
|
$
|
31,694
|
||||
Voyage expenses
|
(17,732
|
)
|
(16,629
|
)
|
||||
Net operating revenues
|
20,410
|
15,065
|
||||||
Operating days
|
1,987
|
1,825
|
||||||
Daily time charter equivalent rate
|
$
|
10,272
|
$
|
8,255
|
(6)
|
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,
|
|||||||
2018
|
2017
|
|||||||
Vessel operating expenses
|
$
|
10,310
|
$
|
8,796
|
||||
Less: Pre-delivery expenses
|
-
|
322
|
||||||
Vessel operating expenses before pre-delivery expenses
|
10,310
|
8,474
|
||||||
Ownership days
|
1,991
|
1,840
|
||||||
Daily vessel operating expenses
|
$
|
5,178
|
$
|
4,605
|
Six months ended
June 30,
|
||||||||
2018
|
2017
|
|||||||
EBITDA reconciliation:
|
||||||||
Net loss
|
$
|
(12,309
|
)
|
$
|
(9,590
|
)
|
||
Add: Net interest expense
|
12,929
|
7,693
|
||||||
Add: Depreciation and amortization
|
5,900
|
5,382
|
||||||
Add: Taxes
|
(11
|
)
|
-
|
|||||
EBITDA(1)
|
$
|
6,509
|
$
|
3,485
|
(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. EBITDA is presented as we believe that this measure is useful to investors as a widely-used means of evaluating operating profitability. EBITDA as presented here may not be comparable to similarly-titled measures presented by other companies. This non-GAAP measure should not be considered in isolation from, as a substitute for, or superior to, financial measures prepared in accordance with U.S. GAAP.
|
As of June 30, 2018
|
||||
Balance Sheet Data:
|
||||
Cash and cash equivalents and restricted cash
|
$
|
12,998
|
||
Total current assets
|
22,251
|
|||
Vessels, net
|
249,344
|
|||
Total assets
|
275,292
|
|||
Total current liabilities
|
48,705
|
|||
Long-term debt,
and other financial liabilities, net of current portion and deferred finance costs
|
177,244
|
|||
Due to related parties, non-current
|
11,450
|
|||
Long-term portion of convertible promissory notes
|
8,669
|
|||
Lease liability, non-current
|
590
|
|||
Total Stockholders' equity
|
28,634
|
Six months ended
June 30,
|
||||||||
2018
|
2017
|
|||||||
Cash Flow Data:
|
||||||||
Net cash used in operating activities
|
(1,579
|
)
|
(4,747
|
)
|
||||
Net cash used in investing activities
|
(617
|
)
|
(32,729
|
)
|
||||
Net cash provided by financing activities
|
4,155
|
30,765
|
||||||
Net increase / (decrease) in cash and cash equivalents and restricted cash
|
1,959
|
(6,711
|
)
|
· |
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.
|
· |
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;
|
· |
expand 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 bank debt and
financing
liabilities, 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.
|
For the Year ended December 31:
|
High
|
Low
|
||||||
2017
|
$
|
1.43
|
$
|
0.61
|
||||
2016
|
7.20
|
1.15
|
||||||
2015
|
6.75
|
2.75
|
||||||
2014
|
9.95
|
4.13
|
||||||
2013
|
12.30
|
4.00
|
||||||
For the Quarter Ended:
|
||||||||
September 30, 2018
|
$
|
1.00
|
$
|
0.86
|
||||
June 30, 2018
|
0.94
|
0.72
|
||||||
March 31, 2018
|
1.15
|
0.87
|
||||||
December 31, 2017
|
1.43
|
0.93
|
||||||
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
|
||||||
For the Month:
|
||||||||
November 2018 (up to November 6, 2018)
|
$
|
0.92
|
$
|
0.89
|
||||
October 2018
|
0.97
|
0.85
|
||||||
September 2018
|
0.92
|
0.86
|
||||||
August 2018
|
1.00
|
0.91
|
||||||
July 2018
|
0.94
|
0.87
|
||||||
June 2018
|
0.90
|
0.83
|
||||||
May 2018
|
0.94
|
0.83
|
· |
on an actual basis;
|
· |
on an as adjusted basis, to give effect to
(a) a mandatory repayment of $3 million on July 2, 2018 under our HSH Nordbank AG loan facility, (b) an installment repayment of $0.8 million on August 13, 2018 under our November 2015 Alpha Bank A.E. loan facility, (c) an installment repayment of $0.4 million on August 27, 2018 under our Amsterdam Trade Bank N.V. loan facility, (d) an installment repayment of $0.2 million on September 13, 2
018 under our EntrustPermal loan facility, (e) an installment repayment of $0.3 million on September 17, 2018 under our March 2015 Alpha Bank A.E. loan facility, (f) an installment repayment of $1.05 million on September 28, 2018 under our HSH Nordbank AG loan facility, (g)
a payment of $0.5 million on September 28, 2018 under our Hanchen Limited bareboat charter agreement, and (h) an installment repayment of $1.6 million on October 11, 2018 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 (unaudited)
|
As Adjusted
(unaudited) |
As Further Adjusted
(unaudited) |
|||||||||
Debt:
|
||||||||||||
Secured long-term debt, other financial liabilities and due to related parties, net of deferred finance costs
|
$
|
218,369
|
$
|
210,618
|
$
|
210,618
|
||||||
Unsecured convertible promissory notes
|
8,869
|
8,869
|
8,869
|
|||||||||
Total Debt
|
$
|
227,238
|
$
|
219,487
|
$
|
219,487
|
||||||
Stockholders' 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, 2018;
38,219,014
shares issued and outstanding as at June 30, 2018 (1)
|
3
|
3
|
||||||||||
Additional paid-in capital (excluding shareholder's convertible notes)
|
$
|
348,584
|
$
|
348,584
|
||||||||
Shareholder's convertible notes
|
35,354
|
35,354
|
35,354
|
|||||||||
Accumulated deficit
|
(355,307
|
)
|
(355,307
|
)
|
(355,307
|
)
|
||||||
Total Stockholders' equity
|
28,634
|
28,634
|
||||||||||
Total capitalization
|
$
|
255,872
|
$
|
248,121
|
(1) |
The "As Adjusted" figures do not include 25,666 shares which were forfeited subsequent to June 30, 2018.
|
Public offering price per common share
|
$ | |||
As adjusted
(1)
net tangible book value per share before this offering
|
$
|
0.35
|
||
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 November 6, 2018, $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".
|
· |
Focus on Capesize Vessels.
Our fleet currently consists of nine Capesize vessels and one Supramax vessel. Following the completion of the aforementioned Capesize vessel acquisition and Supramax vessel disposal, our fleet will consist of ten Capesize vessels
. Therefore, on a pro-forma basis, our Company will be the only pure-play Capesize publicly-listed shipping company worldwide. We believe our focus on just one asset class (Capesize vessels) in the drybulk space provide us with operational and commercial expertise in this market. We believe, further, that our focus on the Capesize market will attract a broader and deeper shareholder base to benefit from the transport of iron ore and coal, to gain exposure to the industries and economies directly affected by the trade of iron ore and coal (including China and Brazil), and to minimize their exposure to the segments of the drybulk market that may be influenced from a much wider range of variables than the trades of iron ore and coal.
According to Karatzas Marine Advisors & Co. seaborne transportation for iron ore and coal has increased by 1.6% in 2016, 4.0% in 2017 and is expected to increase by 3.8% in 2018. In addition, the newbuilding orderbook for Capesize vessels currently represents approximately 3% of the current fleet, a significant reduction from 35.4%, the average size of the newbuilding orderbook of the fleet for the last 10 years. As seen in the graph below, relative to our publicly-traded drybulk owner peers, the Company has distinguished itself in the market as a dedicated provider of Capesize tonnage.
|
· |
Focus on Quality and Commercially Competitive Tonnage.
Our fleet consists of modern-design Capesize vessels with large cargo carrying capacity that are expected to be fully compliant with existing and expected regulations. We believe our
modern-design vessels built at reputable Korean and Japanese shipyards are preferred by charterers, as they require lower maintenance and typically have lower operating expenses than older vessels.
|
· |
Experienced Management
. Our
Company's leadership has considerable depth of shipping industry expertise. Mr. Tsantanis, our Chairman, Chief Executive Officer, brings more than 20 years of experience in shipping and finance and has held senior management positions in prominent shipping companies prior to leading our Company. Mr. Gyftakis, our Chief Financial Officer, has more than 12 years of experience in senior positions in the shipping finance industry. The Company's Chief Operations Officer, Chief Technical Officer and General Counsel have a combined experience of 53 years in senior positions.
|
· |
Access to off market sale and purchase opportunities and ability of prompt execution.
Our past track record, strength and expertise of our management team, our commercial expertise and reputation in the marketplace, and our transparent and public structure may allow us to source off-market secondhand vessels and to build on our strong track record of executing such transactions.
|
· |
Access to Attractive Chartering Opportunities.
The Company's senior management in combination with Fidelity, our commercial manager, has established strong global relationships with international miners, charterers and brokers. We believe that our relationships with these counterparties should provide us with access to attractive chartering opportunities. Furthermore, we aim to maintain our fleet at a level that meets or exceeds stringent industry standards as we believe that owning a modern and well-maintained fleet provides us with a competitive advantage in securing favorable time and spot charters. However, it is possible that the daily rates we receive on future time and spot charters may be lower depending on market fluctuations. As a demonstration of our ability to source attractive employment opportunities two of our vessels have recently entered into long-term time charters with a duration of five years. As part of the agreements, the charterer have agreed to cover the costs for the installation of exhaust gas systems, or scrubbers, on our vessels, in order to ensure compliance with the International Maritime Organization's Sulphur limit rules that will be in effect after January 1, 2020. We believe that the willingness of our charterers' to invest in our vessels is a testament to the superior employment opportunities enjoyed by our fleet.
|
· |
Expanding Our Fleet Through Accretive Acquisitions
.
We aim to acquire high quality Capesize dry bulk carriers through timely acquisitions at prices that are attractive when compared to the vessels' future earnings potential. We currently view the Capesize vessel class as providing the most attractive returns in the dry bulk space given existing vessel price levels. In evaluating acquisitions, we 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, vessel condition and technical specifications, expected remaining useful life, as well as the overall strategic positioning of our fleet and customers. For vessels acquired with charters attached, we also consider the credit quality of the charterer and duration and terms of the contracts in place.
|
· |
Positioned to Capitalize on an Improving Rate Environment via Spot Market Exposure
. We believe our current fleet is optimized to capture increasing vessel revenues because of an upward trend in spot rates. Currently our entire fleet with the exception of two vessels is employed in the spot market under agreements that allow Seanergy to benefit from market improvements. The average of the five time charter routes for the Baltic Capesize Index, or the BCI TCE, the generally agreed upon proxy for spot Capesize shipping rates, has recently increased significantly by 5,154% from the record low level of $485 per day on March 17, 2016 to $14,959 per day on November 7, 2018. The average BCI TCE of the last fifteen years November 2008 until October 2018 is $38,174. As spot charter rates revert to long-term average levels, we expect our chartering strategy to shift towards employing a greater proportion of our fleet under long term fixed-rate contracts in order to minimize downside risk. Because the spot market is volatile, there can be no assurance that the recent increases in the drybulk charter market will continue.
|
· |
Building a Modern-design Capesize Fleet with Critical Mass
. In today's competitive world, shipping companies with larger fleets can benefit from economies of scale by reducing operating expenses per vessel due to volume price discounting; larger fleets also command the preference of the charterers as they can also benefit from the economies of scale themselves. More importantly, shipping companies with larger fleets have greater access to financing on competitive terms from shipping banks and lessors, as well as from institutional investors and the capital markets. The graph shown above under "Competitive Strengths", illustrates our Company's distinguished position in the marketplace now has gained critical mass in terms of deadweight tonnage that is distinguishable in the market place.
|
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
(2)
|
2010
|
178,978
|
LIB
|
Hyundai
|
Spot
|
Lordship
|
2010
|
178,838
|
LIB
|
Hyundai
|
Time Charter(3)
|
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
(4)
|
2011
|
56,884
|
MI
|
CSC Jinling
|
Spot
|
Average Age/Total dwt:
|
9.6 years
|
1,625,763
|
Vessel to be Delivered
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
Fellowship (5)
|
2010
|
179,701
|
MI
|
Daewoo
|
Time Charter (6)
|
Average Age/Total dwt (7)
|
9.6 years
|
1,748,580
|
(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 was sold to and leased back from a major Chinese leasing institution on June 29, 2018 for an eight year period.
|
(3) |
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.
|
(4) |
The Company has entered into a definitive agreement with unaffiliated third party for the sale of the
Guardianship
.
|
(5) |
This vessel is expected to be delivered to Seanergy in November 2018. Please see "Prospectus Summary - Recent Developments"
|
(6) |
This vessel is being chartered by Swissmarine S.A. and was delivered to the charterer on February 6, 2017 for a period of employment of about 10 months to about 13 months at a gross daily rate of $17,250
|
(7) |
Pro-forma fleet, following the delivery of the
Fellowship
to Seanergy and the
Guardianship
to its new owners.
|
Customer
|
2017
|
2016
|
2015
|
|||||||||
A
|
17
|
%
|
-
|
-
|
||||||||
B
|
17
|
%
|
-
|
-
|
||||||||
C
|
-
|
18
|
%
|
-
|
||||||||
D
|
-
|
12
|
%
|
15
|
%
|
|||||||
E
|
-
|
-
|
47
|
%
|
||||||||
F
|
-
|
-
|
12
|
%
|
||||||||
G
|
-
|
-
|
10
|
%
|
||||||||
Total
|
34
|
%
|
30
|
%
|
84
|
%
|
· |
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.
|
Vessel Type
|
Scheduled Delivery (in mil dwt)
|
Present Fleet
|
Total Orderbook
|
|||
2018
|
2019
|
2020+
|
Total Orderbook
|
(as % of Present Fleet, mil dwt)
|
||
Capesize
|
0.6
|
2.5
|
2.6
|
5.7
|
186.4
|
3.08%
|
Panamax
|
2.5
|
9.5
|
8.1
|
20.1
|
206.4
|
9.74%
|
Supramax
|
2.5
|
5.4
|
5.2
|
13.1
|
201.5
|
6.46%
|
Overall
|
5.6
|
17.4
|
15.9
|
38.9
|
594.3
|
6.58%
|
Name
|
Age
|
Position
|
Director Class
|
|||
Stamatios Tsantanis
|
46
|
Chairman, Chief Executive Officer and Director
|
A (term expires in 2019)
|
|||
Stavros Gyftakis
|
39
|
Chief Financial Officer
|
||||
Christina Anagnostara
|
47
|
Director
|
B (term expires in 2020)
|
|||
Elias Culucundis
|
75
|
Director*
|
A (term expires in 2019)
|
|||
Dimitris Anagnostopoulos
|
71
|
Director*
|
C (term expires in 2021)
|
|||
Ioannis Kartsonas
|
46
|
Director*
|
C (term expires in 2021)
|
* |
Independent Director
|
Identity of Person or Group
|
Number of
Shares Owned |
Percent of
Class
(2)
|
||||||
Claudia Restis
(1)
|
59,780,442
|
73.6
|
%
|
|||||
Stamatios Tsantanis
|
791,800
|
2.1
|
%
|
|||||
Stavros Gyftakis
|
—
|
*
|
||||||
Christina Anagnostara
|
—
|
*
|
||||||
Elias Culucundis
|
—
|
*
|
||||||
Dimitrios Anagnostopoulos
|
—
|
*
|
||||||
Ioannis Kartsonas
|
—
|
*
|
||||||
Directors and executive officers as a group (6 individuals)
|
935,800
|
2.5.
|
%
|
*
|
Less than one percent.
|
(1)
|
Based on the Schedule 13D/A filed by Jelco, Comet and Claudia Restis on March 30, 2018, Claudia Restis may be deemed to beneficially own 58,927,008 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 common shares 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 common shares 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 common shares 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 38,193,348 common shares outstanding as of November 6, 2018 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.
|
Marshall Islands
|
Delaware
|
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.
|
|||
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;
|
· |
persons required to recognize income for U.S. federal income tax purposes no later than when such income is included on an "applicable financial statement;" 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
|
|||
Fearnley Securities, Inc.
|
||||
Fearnley Securities AS
|
||||
Total
|
5,600,000
|
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
|
$
|
$
|
$
|
Commission registration fee
|
$
|
697
|
||
Financial Industry Regulatory Authority Filing fee
|
$
|
3,950
|
||
Printing expenses
|
$
|
*
|
||
Legal fees and expenses
|
$
|
*
|
||
Accounting fees and expenses
|
$
|
*
|
||
Miscellaneous fees and expenses
|
$
|
*
|
||
Total
|
$
|
*
|
· |
our Annual Report on Form 20-F and Form 20-F/A for the year ended December 31, 2017, filed with the Commission on March 7, 2018 and March 8, 2018, respectively;
|
· |
our report on Form 6-K furnished to the Commission on August 10, 2018, 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, 2018.
|
PROSPECTUS
|
||
Fearnley Securities
|
||
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 and Chairman of the Board
(Principal Executive Officer) |
|
Stamatios Tsantanis
|
||
/s/ Stavros Gyftakis
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
Stavros Gyftakis
|
||
/s/ Christina Anagnostara*
|
Director
|
|
Christina Anagnostara
|
||
|
||
/s/ Dimitris Anagnostopoulos*
|
Director
|
|
Dimitris Anagnostopoulos
|
||
|
||
/s/ Elias Culucundis*
|
Director
Director
|
|
Elias Culucundis
/s/ Ioannis Kartsonas*
|
||
Ioannis Kartsonas
|
By:
|
/s/ Stamatios Tsantanis
|
|
Stamatios Tsantanis
|
PUGLISI & ASSOCIATES
|
||
/s/
Donald J. Puglisi
|
||
Name:
|
Donald J. Puglisi
|
|
Title:
|
Managing Director
|
Number
|
Description
|
|
1.1
|
||
3.1
|
||
3.2
|
||
3.3
|
||
3.4
|
||
3.5
|
||
3.6
|
||
3.7
|
||
4.1
|
||
5.1
|
||
8.1
|
||
10.1
|
||
10.2
|
||
10.3
|
||
10.4
|
||
10.5
|
Amended and Restated Equity Incentive Plan of the registrant adopted on February 1, 2018
(13)
|
|
10.6
|
||
10.7
|
||
10.8
|
||
10.9
|
||
10.10
|
||
10.11
|
||
10.12
|
||
10.13
|
||
10.14
|
||
10.15
|
Amendment No. 3 to Commercial Management Agreement dated February 1, 2018 between Seanergy Management Corp. and Fidelity Marine Inc. with respect to the Commercial Management Agreement dated March 2, 2015
(21)
|
|
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
|
||
10.64
|
||
10.65
|
||
10.66
|
||
10.67
|
||
10.68
|
||
10.69
|
Termination Letter dated September 27, 2017 between the registrant and Jelco Delta Holding Corp. with respect to the Loan Agreement dated March 28, 2017
(64)
|
|
10.70
|
||
10.71
|
||
10.72
|
||
10.73
|
||
10.74
|
||
10.75
|
||
10.76
|
||
10.77
|
||
10.78
|
||
10.79
|
||
10.80
|
||
10.81
|
||
10.82
|
||
10.83
|
||
10.84
|
||
10.85
|
||
10.86
|
||
10.87
|
||
10.88
|
||
10.89
|
||
10.90
|
||
10.91
|
||
10.92
|
||
10.93
|
||
10.94
|
||
10.95
|
||
10.96
|
||
21.1
|
||
23.1
|
||
23.2
|
||
23.3
|
||
23.4
|
||
24.1
|
*
|
To be filed by amendment.
|
**
|
Filed herewith.
|
(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 annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(10)
|
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.
|
(11)
|
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.
|
(12)
|
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.
|
(13)
|
Incorporated herein by reference to Exhibit 4.5 to the registrant's annual report on Form 20-F filed with the Commission on March 8, 2018.
|
(14)
|
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.
|
(15)
|
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.
|
(16)
|
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.
|
(17)
|
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.
|
(18)
|
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.
|
(19)
|
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.
|
(20)
|
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.
|
(21)
|
Incorporated herein by reference to Exhibit 4.13 to the registrant's annual report on Form 20-F filed with the Commission on March 8, 2018.
|
(22)
|
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.
|
(23)
|
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.
|
(24)
|
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.
|
(25)
|
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.
|
(26)
|
Incorporated herein by reference to Exhibit 10.17 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(29)
|
Incorporated herein by reference to Exhibit 10.18 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(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 10.34 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(44)
|
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.
|
(45)
|
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.
|
(46)
|
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.
|
(47)
|
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.
|
(48)
|
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.
|
(49)
|
Incorporated herein by reference to Exhibit 10.40 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(50)
|
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.
|
(51)
|
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.
|
(52)
|
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.
|
(53)
|
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.
|
(54)
|
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.
|
(55)
|
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.
|
(56)
|
Incorporated herein by reference to Exhibit 10.47 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(57)
|
Incorporated herein by reference to Exhibit 10.48 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(58)
|
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.
|
(59)
|
Incorporated herein by reference to Exhibit 10.50 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(60)
|
Incorporated herein by reference to Exhibit 10.51 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(61)
|
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.
|
(62)
|
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.
|
(63)
|
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.
|
(64)
|
Incorporated herein by reference to Exhibit 4.56 to the registrant's annual report on Form 20-F filed with the Commission on March 8, 2018.
|
(65)
|
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.
|
(66)
|
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.
|
(67)
|
Incorporated herein by reference to Exhibit 10.57 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(68)
|
Incorporated herein by reference to Exhibit 10.58 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(69)
|
Incorporated herein by reference to Exhibit 10.59 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(70)
|
Incorporated herein by reference to Exhibit 10.60 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(71)
|
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.
|
(72)
|
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.
|
(73)
|
Incorporated herein by reference to Exhibit 10.63 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(1) |
KNIGHT OCEAN NAVIGATION CO.
, having its registered office at 80 Broad Street, Monrovia, Republic of Liberia (
"Knight"
); and
|
(2) |
V.SHIPS LIMITED
, of Zina Kanther 16-18, Agia Triada, 3035 Limassol, Cyprus (the
"Managers"
).
|
(A) |
Knight and the Managers have entered into a Ship Technical Management Agreement with respect to the motor vessel KNIGHTSHIP with IMO no. 9507893 (the "
Vessel
") dated November 23, 2016 (the "
Management Agreement
");
|
(B) |
Knight have entered into negotiations with Hanchen Limited, of the Republic of the Marshall Islands (the "
New Owners
") for the sale and the chartering of the Vessel in a bareboat basis; and
|
(C) |
The New Owners will acquire the vessel pursuant to a Memorandum of Agreement entered into between Knight, as sellers and the New Owners, as buyers dated June 28, 2018 (the "
MOA
") and Knight will charter back the Vessel on a bareboat basis pursuant to a Bareboat Charter Agreement in the BARECON 2001 form entered into between the New Owners, as owners and Knight, as bareboat charterer dated June 28, 2018 (the "
Bareboat Charter
").
|
1. |
With effect from the date of delivery of the Vessel pursuant to the MOA and the Bareboat Charter, Part I of the Management Agreement shall be deleted in its entirety and replaced with the following:
|
1.
Vessel Details
|
|
Name:
KNIGHTSHIP
|
GT/NT:
93,186 / 59,500
|
Flag:
LIBERIA
|
Class:
BV
|
Type:
BULK CARRIER
|
Year Built:
2010
|
IMO number:
9507893
|
|
2.
Disponent Owners – Bareboat Charterers
|
Signature(s) (Disponent Owners- Bareboat Charterers) | Signature(s) (Managers) | ||
/s/ Stamatios Tsantanis
|
/s/ Nicholas Barham
|
||
Stamatios Tsantanis
|
Nicholas Barham
|
||
Title: President
|
Title: Director
|
2. |
With effect from the date of delivery of the Vessel pursuant to the MOA and the Bareboat Charter, all references in the Management Agreement to "Owners", shall mean "Disponent Owners – Bareboat Charterers".
|
EXECUTED
By Stamatios Tsantanis
for and on behalf of
KNIGHT OCEAN NAVIGATION CO.
|
)
)
)
)
|
/s/ Stamatios Tsantanis
.........................................
|
EXECUTED
By Nicholas Barham
for and on behalf of
KNIGHT OCEAN NAVIGATION CO.
|
)
)
)
)
|
/s/ Nicholas Barham
......................................
|
1 |
V.Ships Limited
, of Limassol Cyprus, with registered address at Zina Kanther, 16-18, Agia Triada, 3035 Limassol, Cyprus (herein referred to as the "
Manager
");
|
2 |
Champion Ocean Navigation Co. Limited
, of Malta, with registered address at 147/1, St. Lucia Street, Valletta, VLT 1185, Malta) (herein referred to as the "
Owner
"); and
|
3 |
Champion Marine Co.
, of the Republic of the Marshall Islands, with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (herein referred to as the "
Sub-Bareboat Charterer/Disponent Owner
").
|
A. |
This Novation Agreement is supplemental to a Ship Management Agreement dated 1 September 2015 made between the Manager and the Owner (formerly known as Champion Ocean Navigation Co., of the Republic of Liberia) in respect of the vessel
"CHAMPIONSHIP"
(the "
Vessel
") registered in the name of the Owner under the Liberian flag with IMO no. 9403516 (as amended by the Amendment dated 23 May 2018, together the "
Management Agreement
");
|
B. |
The Owner has entered into negotiations with,
inter alios
, Cargill International SA, of Geneva, Switzerland (the "
Buyers
") and CFT Investments 1 LLC (the "
New Owner
") for the sale of the Vessel;
|
C. |
The Buyers will acquire the Vessel pursuant to a Memorandum of Agreement to be entered into between the Owner, as sellers, Seanergy Maritime Holdings Corp., as guarantor and the Buyers, as buyers (the "
MOA
");
|
D. |
The Sub-Bareboat Charterer/Disponent Owner will charter the Vessel on a sub-bareboat basis pursuant to a bareboat charter agreement to be entered into between the Buyers, as owners and the Sub-Bareboat Charterer/Disponent Owner, as sub-bareboat charterers (the "
Sub-Bareboat Charter
");
|
E. |
The Vessel will be registered in the name of the New Owner under the Flag of the Republic of the Marshall Islands; and
|
F. |
The Owner, the Manager and the Sub-Bareboat Charterer/Disponent Owner have agreed to enter into this Novation Agreement so that the Owner be released and discharged from the Management Agreement as from delivery of the Vessel under the MOA and the Sub-Bareboat Charter (the "
Effective Date
") and that the Manager releases and discharges the Owner with respect to the Management Agreement from the Effective Date upon the terms of the Sub-Bareboat Charterer/Disponent Owner undertaking to perform in all respects the Management Agreement and be bound by all the terms of the Management Agreement in place of the Owner.
|
G. |
The Management Agreement, as Annexed hereto, has not been amended, varied, cancelled, novated or terminated and represents the entire agreement between the Manager and the Owner.
|
1. |
Novation and Release
|
1.1 |
With effect from the Effective Date as defined in paragraph "F" above and by mutual agreement between the parties and in consideration of the mutual undertakings and releases herein contained, the Sub-Bareboat Charterer/Disponent Owner shall substitute the Owner under the Management Agreement and the Sub-Bareboat Charterer/Disponent Owner shall as from the Effective Date assume all rights and obligations of the Owner arising out of or in connection with the Management Agreement and agrees to be bound in all respects in place of the Owner by the terms of the Management Agreement, which shall hereafter be construed and treated in all respects as if the Sub-Bareboat Charterer/Disponent Owner had been originally named as a party to the Management Agreement.
|
1.2 |
With effect from the Effective Date all references to the Flag shall be amended to mean the flag of the Marshall Islands.
|
1.2 |
The Sub-Bareboat Charterer/Disponent Owner hereby agrees to continue to be bound by the Management Agreement in all respects vis-a-vis the Owner from the Effective Date and further agrees to release the Owner from any further liability under the Management Agreement that may arise or be incurred from events after the Effective Date.
|
1.3 |
Any issues or disputes arising between the Owner and the Manager in connection with the Management Agreement shall be resolved between themselves without involving or prejudicing the Sub-Bareboat Charterer/Disponent Owner.
|
1.4 |
Nothing in this Novation Agreement shall affect or prejudice any claim or demand whatsoever which either the Owner or the Manager may have against the other relating to matters arising prior to the Effective Date.
|
2. |
Amendments to the Management Agreement
|
(a) |
all references to the "Owners" in the Management Agreement shall mean "Sub-Bareboat Charterer/Disponent Owner"; and
|
(b) |
In Part I of the Management Agreement will be replaced as of the Effective Date with the following:
|
/s/ Stamatios Tsantanis
|
/s/ Nicholas Barham
|
|
Stamatios Tsantanis
|
Nicholas Barham
|
|
Title: President
|
Title: Director
|
|
3. |
Law and Jurisdiction
|
Executed as a Deed
|
)
|
||
By Nicholas Barham
|
)
|
||
for and on behalf of
|
)
|
||
V.Ships Limited
|
)
|
/s/ Nicholas Barham
|
|
of Limassol Cyprus
|
)
|
||
in the presence of:
|
)
|
||
Philippos Charalambides
|
|||
Executed as a Deed
|
)
|
||
By Stavros Gyftakis
|
)
|
||
for and on behalf of
|
)
|
||
Champion Ocean Navigation Co. Limited
|
)
|
/s/ Stavros Gyftakis
|
|
of Malta
|
)
|
||
in the presence of:
|
)
|
||
Executed as a Deed
|
)
|
||
By Stavros Gyftakis
|
)
|
||
for and on behalf of
|
)
|
||
Champion Marine Co.
|
)
|
/s/ Stavros Gyftakis
|
|
of the Marshall Islands
|
)
|
||
in the presence of:
|
)
|
THIRD SUPPLEMENTAL AGREEMENT
in relation to a Loan Agreement dated 6
th
March, 2015
for a loan facility of (initially)
US$
8,750,000
|
CLAUSE
|
HEADINGS
|
PAGE
|
1.
|
Definitions
|
2
|
2.
|
Borrower's Acknowledgment of Indebtedness
|
2
|
3.
|
Representations and warranties
|
3
|
4.
|
Agreement of the Lender
|
4
|
5.
|
Conditions
|
4
|
6.
|
Variations to the Principal Agreement
|
5
|
7.
|
Continuance of Principal Agreement and the Security Documents
|
9
|
8.
|
Entire agreement and amendment
|
10
|
9.
|
Fees and expenses
|
10
|
10.
|
Miscellaneous
|
11
|
11.
|
Entire agreement and amendment; effect on Principal Agreement
|
11
|
12.
|
Applicable law and jurisdiction
|
11
|
(1) |
ALPHA
BANK
A.E.
, a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head office at 40 Stadiou Street, Athens GR 102 52, Greece, acting, except as otherwise herein provided through its office at 93 Akti Miaouli, Piraeus, Greece
(hereinafter called the
"Lender",
which expression shall include its successors and assigns); and
|
(2) |
LEADER SHIPPING CO.
,
a company duly incorporated and validly existing under the laws of the Republic of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
(hereinafter called the "
Borrower",
which expression shall include its successors
);
|
(A) |
the Borrower hereby acknowledges and confirms that (a) the Lender has advanced to the Borrower the full amount of the Loan in the principal amount of United States Dollars Eight million seven hundred fifty
thousand Dollars
(US$8,750,000) and (b) as of the Effective Date the principal amount of
United States Dollars
Six million two hundred
two
thousand nine hundred fifty three and six cents (US$6,202,953.06)
in respect of the Loan remains outstanding
;
|
(B) |
pursuant to a guarantee dated 17
th
March
2015 as amended and/or supplemented by (a) a deed of amendment of guarantee dated 23
rd
December, 2015 (the "
Guarantee Deed of Amendment No. 1
") and (b) a second deed of amendment of guarantee dated 28
th
July, 2016 (the "
Guarantee Deed of Amendment No. 2
") (the said guarantee as amended and/or supplemented by the Guarantee Deed of Amendment No. 1 and the Guarantee Deed of Amendment No. 2 is hereinafter called
the
"Corporate Guarantee"
)
Seanergy Maritime Holdings Corp
., of the Marshall
|
(C) |
the Borrower has requested the Lender to grant its consent to (inter alia) the amendment of the Liquidity covenant, the Leverage covenant and the EBITDA covenant, provided in Clause 8.6 (
Additional Financial Covenants - Compliance Certificate
)
of the Principal Agreement and the Lender has agreed thereto conditionally upon terms that the Principal Agreement shall be amended in the manner hereinafter set out in Clause 6 of this Agreement
.
|
1. |
Definitions
|
1.1 |
Words and expressions defined in the Principal Agreement and not otherwise defined herein (including the Recitals hereto) shall have the same meanings when used in this Agreement.
|
1.2 |
In addition, in this Agreement the words and expressions specified below shall have the meanings attributed to them below:
|
1.3 |
(a) Where the context so admits words importing the singular number only shall include the plural and vice versa and words importing persons shall include firms and corporations, (b) clause headings are inserted for convenience of reference only and shall be ignored in construing this Agreement, (c) references to Clauses are to clauses of this Agreement save as may be otherwise expressly provided in this Agreement and (d) all capitalised terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
|
2. |
Borrower's Acknowledgment of Indebtedness
|
3. |
Representations and warranties
|
3.1 |
The Borrower hereby represents and warrants to the Lender as at the date hereof that the representations and warranties set forth in the Principal Agreement and the Security Documents (updated mutatis mutandis to the date of this Agreement) are (and will be on the Effective Date) true and correct as if all references therein to "
this Agreement
" were references to the Principal Agreement as amended and supplemented by this Agreement.
|
3.2 |
In addition to the above, the Borrower hereby represents and warrants to the Lender as at the date of this Agreement that:
|
a. |
the Borrower is duly formed, is validly existing and in good standing under the laws of the place of its incorporation and has full power to carry on its business as it is now being conducted and to enter into and perform its obligations under the Principal Agreement and this Agreement and has complied with all statutory and other requirements relative to its business and does not have an established place of business in any part of the United Kingdom or the USA;
|
b. |
all necessary licences, consents and authorities, governmental or otherwise under this Agreement and the Principal Agreement have been obtained and, as of the date of this Agreement, no further consents or authorities are necessary for any of the Security Parties to enter into this Agreement or otherwise perform its obligations hereunder;
|
c. |
this Agreement constitutes the legal, valid and binding obligations of the Security Parties thereto enforceable in accordance with its terms;
|
d. |
the execution and delivery of, and the performance of the provisions of this Agreement do not, and will not contravene any applicable law or regulation existing at the date hereof or any contractual restriction binding on any of the Security Parties or its respective constitutional documents;
|
e. |
no action, suit or proceeding is pending or threatened against the Borrower or its assets before any court, board of arbitration or administrative agency which could or might result in any material adverse change in the business or condition (financial or otherwise) of any of the Borrower or the other Security Parties;
|
f. |
the Borrower is not and at the Effective Date will not be in default under any agreement by which it is or will be at the Effective Date bound or in respect of any financial commitment, or obligation;
|
g. |
the
Corporate
Guarantor maintains Liquidity in an amount equal to $500,000 per Fleet Vessel and an amount equal to $500,000 for the Vessel is maintained in the Earnings Account;
|
h. |
No US
Tax
Obligor: Neither the Borrower nor the Corporate Guarantor is a US Tax Obligor; and
|
i. |
Sanctions
:
|
(i) |
neither the Borrower nor the Corporate Guarantor is a Prohibited Person nor is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and none of the Borrower or the Corporate Guarantor owns nor controls a Prohibited Person; and
|
(ii) |
no proceeds of the Loan have been made available, directly or indirectly, to or for the benefit of a Prohibited Person or otherwise shall be, directly or indirectly, applied in a manner or for a purpose prohibited by Applicable Sanctions; and
|
3.3 |
The representations and warranties of the Borrower in this Agreement shall survive the execution of this Agreement and shall be deemed to be repeated at the commencement of each Interest Period.
|
4. |
Agreement of the Lender
|
5. |
Conditions
|
5.1 |
The agreement of the Lender contained in Clause 4 shall be expressly subject to the condition that the Lender shall have received on or before the Effective Date in form and substance satisfactory to the Lender and its legal advisers:
|
a. |
a certified true copy of the certificate of good standing or other equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the Borrower and the Corporate Guarantor;
|
b. |
certified and duly legalised copies of resolutions duly passed by the Board of Directors of the Borrower and the Corporate Guarantor and certified and duly legalised copies of the resolutions passed at a meeting of the shareholders of the Borrower and the Corporate Guarantor (and of any corporate shareholder thereof), if applicable, evidencing approval of this Agreement or the
Guarantee Deed of Amendment No. 3 (as the case may be)
and authorising appropriate officers or attorneys–in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
|
c. |
all documents evidencing any other necessary action or approvals or consents with respect to this Agreement or the
Guarantee Deed of Amendment No. 3
, including, but not limited to, certified and duly legalised Certificates of Incumbency issued by any of the Directors of the Borrower and the Corporate Guarantor evidencing approval of this Agreement or the
Guarantee Deed of Amendment No. 3 (
and authorising appropriate officers or attorneys-in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
|
d. |
the original of any power(s) of attorney issued in favour of any person executing this Agreement or the
Guarantee Deed of Amendment No. 3
on behalf of the Borrower and the Corporate Guarantor;
|
e. |
all documents evidencing any other necessary action or approvals or consents with respect to this Agreement;
|
f. |
evidence satisfactory to the Lender that
an amount equal to $500,000 for the Vessel is maintained in the Earnings Account;
and
|
g. |
such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors as the Lender shall require.
|
5.2 |
Variations to the Principal Agreement
|
a. |
In consideration of the agreement of the Lender contained in Clause 4, the Borrower hereby agrees with the Lender that (subject to the satisfaction of the conditions precedent contained in Clause 5), the provisions of the Principal Agreement shall be varied and/or amended and/or supplemented as follows:
|
b. |
with effect as from the Effective Date, the following new definitions shall be added to Clause 1.2
(
Definitions
)
of the Principal Agreement reading as follows:
|
c. |
with effect as from the Effective Date, paragraph (m) (
Shareholdings
) of Clause 6.1 (
Continuing
Representations and Warranties
)
of the Principal Agreement shall be amended to read as follows:
|
"(m) |
Shareholdings
|
i. |
the control of the Corporate Guarantor and
the voting rights attaching to at
least 51% of
the shares issued and outstanding in the share capital of the
Corporate
Guarantor (including all shares issuable upon exercise of the conversion option under the Notes)
are and at least 51% of
the shares issued and outstanding in the share capital of the
Corporate
Guarantor (including all shares issuable upon exercise of the conversion option under the Notes) and the voting rights attaching to such shares shall, throughout the Security Period, be
ultimately beneficially held directly or indirectly by the person(s) disclosed to the Lender at the negotiation of this Agreement; and
|
ii. |
no change has been made directly or indirectly in the ownership, beneficial ownership, control or management of the Borrower or any share therein (including all shares issuable upon exercise of the conversion option under the Notes) or of the Vessel (especially concerning class or flag);
|
iii. |
no change has been made directly or indirectly in the ultimate beneficial ownership of any of the shares in the
Corporate
Guarantor or in the ultimate control of the voting rights attaching to any of those shares (including all shares issuable upon exercise of the conversion option under the Notes) from that existing on the date of this Agreement which results in the person(s) disclosed by the Borrower to the Lender in the negotiation of this Agreement not having at least 51% of the shares issued and outstanding in the share capital in the
Corporate
Guarantor (including all shares issuable upon exercise of the conversion option under the Notes) and the voting rights attaching to such shares;"
|
d. |
with effect as from the Effective Date, Clause 8.6 (
Additional Financial Covenants - Compliance Certificate
)
of the Principal Agreement shall be amended to read as follows:
|
" 8.6 |
"
Additional Financial Covenants - Compliance Certificate
.
The Borrower will ensure that, based on the relevant Accounting Information for that Financial Year or the relevant period, the
Corporate
Guarantor shall comply with the financial covenants set out below:
|
(a) |
Liquidity
:
the Corporate Guarantor shall procure and ensure that it is maintained throughout the
Security
Period, Corporate Liquidity (
including any contractually committed but undrawn parts of the Notes)
in an amount equal to $500,000 per Fleet Vessel.
|
(b) |
Leverage
:
the Corporate Leverage Ratio of the Corporate Guarantor will not be,
(i) at the end of 31
st
December, 2018, higher than 0.85:1.0, the compliance with such obligation to be tested on each Financial Semester Day starting from the 1
st
July, 2018; (ii) on 31
st
March, 2019, higher than 0.80:1.0, and (iii) from 1
st
June, 2019 and at the end of any Accounting Period, higher than 0.75:1.0, the compliance with such obligation to be tested on each Financial Semester Day starting from the 30
th
June, 2019;
|
(c) |
EBITDA
: the consolidated interest cover ratio for the Accounting Period (EBITDA to Net Interest Expense) shall not be (i) until and including the 31
st
March 2019, lower than 1.2:1, the compliance with such obligation to be tested on each Financial Semester Day starting from the 1
st
July, 2018 and (ii) as from 1
st
April, 2019 until the expiration of the Security Period, lower than 2:1, the compliance with such obligation to be tested on each Financial Semester Day starting from the 1
st
April, 2019;
|
(d) |
Compliance Certificate
:
ensure that
at the end of each semester to be delivered to the Lender a Compliance Certificate in the form provided in Schedule 3 of this Agreement, duly completed and supported by reasonably detailed calculations of the underlying covenants to be delivered to the Lender; such Compliance Certificate to be provided as follows: (i) with respect to each Financial Year as soon as practicable but not later than 120 days after the end of the financial period to which it relates and (ii) with respect to each semester ending the 30
th
of June of each Financial Year as soon as practicable but not later than 90 days after the end of such semester, and provided that the first Compliance Certificate to be delivered by the Borrower to the Lender will be with respect to the six month period ending 30
th
June 2018.
|
(e) |
The expressions used in this Clause 8.6 shall be construed in accordance with the law and the Applicable
Accounting Principles
as used in the Accounting Information produced in accordance with sub-Clause 8.1(e) and for the purposes of this Agreement:
|
(i) |
in respect of any deposit held with the Lender, security created to secure the obligations of the Borrower under the Loan Agreement;
|
(ii) |
in respect of deposits held with other lenders of the Group, security created to secure the obligations of the respective borrower(s) under the respective loan agreement(s); and
|
(iii) |
in respect of deposits held with other lenders of the Group as drydocking reserve cash under the respective loan agreement(s)
|
(f) |
Determination of defined terms
: All the terms defined in this Clause 8.6 and used in this Clause 8.6, and other accounting terms used in this Clause 8.6, are to be determined on a consolidated basis and (except as items are expressly included or excluded in the relevant definition or provision) are
|
(g) |
Compliance
: The compliance of the Corporate Guarantor with the undertakings set out in Clause 8.6 shall be determined by the Lender in accordance with the Applicable Accounting Principles (and such determination shall, in the absence of manifest error, be conclusive on the Corporate Guarantor) on the basis of calculations made by the Lender by reference to the relevant Accounting Information delivered to the Lender pursuant to Clause 8.1(e).
|
(h) |
Calculations
: For the purposes of this Clause 8.6: (a) no item shall be deducted or credited more than once in any calculation; and (b) any amount expressed in a currency other than Dollars shall be converted into Dollars in accordance with the Applicable Accounting Principles.
|
e. |
with effect as from the Effective Date, the following is added at the end of Clause 13.2 (
Earnings Account
) of the Principal Agreement reading as follows:
|
f. |
with effect as from the Effective Date, paragraph (c)(i) of Clause 16.1 (
Notices
) shall be amended so as to read as follows:
|
"(i) |
if to be sent to any Security Party, to:
|
g. |
With effect as from the Effective Date the definition
"Security Documents"
shall be deemed to include the Security Documents as amended and/or supplemented in pursuance to the terms hereof and any document or documents (including if the context requires the Loan Agreement) that may now or hereafter be executed as security for the repayment of the Loan, interest thereon and any other moneys payable by the Borrower under the Principal Agreement and the Security Documents (as herein defined) as well as for the performance by the Borrower and the other Security Parties as defined in the Loan Agreement of all obligations, covenants and agreements
|
5.3 |
All references in the Principal Agreement to
"
this Agreement
", "
hereunder
"
and the like
and all references
in the Security Documents to the
"
Loan Agreement
"
shall be construed as references to the Principal Agreement as amended and/or supplemented by this Agreement.
|
6. |
Continuance of Principal Agreement and the Security Documents
|
6.1 |
Save for the alterations to the Principal Agreement, and the Security Documents made or to be made pursuant to this Agreement, and such further modifications (if any) thereto as may be necessary to make the same consistent with the terms of this Agreement, the Principal Agreement shall remain in full force and effect and the security constituted by the Security Documents executed by the Borrower shall continue to remain valid and enforceable and the Borrower hereby reconfirms its obligations under the Principal Agreement as hereby amended and under the Security Documents to which it is a party.
|
7. |
Entire agreement and amendment
|
7.1 |
The Principal Agreement, the other Security Documents, and this Agreement represent the entire agreement among the parties hereto with respect to the subject matter hereof and supersede any prior expressions of intent or understanding with respect to this transaction and may be amended only by an instrument in writing executed by the parties to be bound or burdened thereby.
|
7.2 |
This Agreement is supplementary to and incorporated in the Principal Agreement, all terms and conditions whereof, including, but not limited to, provisions on payments, calculation of interest and Events of Default, shall apply to the performance and interpretation of this Agreement.
|
8. |
Fees and expenses
|
8.1 |
The agreement of the Lender to the amendment of the Principal Agreement as herein provided shall be expressly subject to the condition that the Borrower shall pay to the Lender a non-refundable up-front fee of an amount of United States Dollars Twenty thousand ($20,000) payable on the date hereof.
|
8.2 |
The Borrower agrees to pay to the Lender upon demand on a full indemnity basis and from time to time all costs, charges and expenses (including legal fees) incurred by the Lender in connection with the negotiation, preparation, execution and enforcement or attempted enforcement of this Agreement and any document executed pursuant thereto and/or in preserving or protecting or attempting to preserve or protect the security created hereunder and/or under the Security Documents.
|
8.3 |
The Borrower covenants and agrees to pay and discharge all stamp duties, registration and recording fees and charges and any other charges whatsoever and wheresoever payable or due in respect of this Agreement and/or any document executed pursuant hereto.
|
9. |
Miscellaneous
|
9.1 |
The provisions of Clause 14
(
Assignment, Transfer, Participation, Lending Office
)
and Clause 16.1 (
Notices
)
(as hereby amended)
of the Principal Agreement shall apply to this Agreement as if the same were set out herein in full.
|
10. |
Entire agreement and amendment; effect on Principal Agreement
|
10.1 |
Except to the extent that the Principal Agreement is expressly amended or supplemented by this Agreement, all terms and conditions of the Principal Agreement remain in full force and effect. This Agreement is supplementary to and incorporated in the Principal Agreement, all terms and conditions whereof, including, but not limited to, provisions on payments, calculation of interest and Events of Default, shall apply to the performance and interpretation of this Agreement.
|
10.2 |
The
Principal
Agreement, the other Security Documents, and this Agreement represent the entire agreement among the parties hereto with respect to the subject matter hereof and supersede any prior expressions of intent or understanding with respect to this transaction and may be amended only by an instrument in writing executed by the parties to be bound or burdened thereby.
|
11. |
Applicable law and jurisdiction
|
12.1 |
This Agreement
and any non-contractual obligations arising out or connected with it are
governed by and shall be construed in accordance with English law and the provisions of Clause 17
(
Law and Jurisdiction
)
of the Principal Agreement shall apply mutatis mutandis to this Agreement as if the same were set out herein in full.
|
12.2 |
No
term
of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
|
SIGNED by
|
)
|
||
Mr. Stavros Gyftakis
|
)
|
||
for and on behalf of
|
)
|
||
LEADER SHIPPING CO
.
|
)
|
/s/ Stavros Gyftakis | |
of Marshall Islands, in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ P anagiota Sdrolia | |
Name:
|
Panagiota Sdrolia
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
Piraeus, Greece
|
||
Occupation:
|
Attorney-at-law
|
SIGNED by
|
)
|
||
Mr. Konstantinos Flokos
|
)
|
/s/ Konstantinos Flokos | |
and Mrs. Chrysanthi Papathanasopoulou
|
)
|
Attorney-in-fact
|
|
for and on behalf of
|
)
|
||
ALPHA BANK A.E.
|
)
|
||
in the presence of:
|
)
|
/s/ Chrysanthi Papathanasopoulou | |
Attorney-in-fact
|
Witness:
|
/s/ Panagiota Sdrolia | |
Name:
|
Panagiota Sdrolia
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
Piraeus, Greece
|
||
Occupation:
|
Attorney-at-law
|
Clause
|
Page
|
|
1
|
Definitions and Interpretation
|
2
|
2
|
Agreement of the Creditor Parties
|
4
|
3
|
Conditions Precedent
|
4
|
4
|
Representations
|
4
|
5
|
Amendments to Loan Agreement, Corporate Guarantee and other Finance Documents
|
5
|
6
|
Further Assurance
|
11
|
7
|
Fees
|
12
|
8
|
Expenses
|
12
|
9
|
Notices
|
12
|
10
|
Counterparts
|
12
|
11
|
Governing Law
|
12
|
12
|
Enforcement
|
12
|
Schedule 1
|
The Lenders
|
12
|
Schedule 2
|
Conditions Precedent
|
13
|
Execution Pages
|
14
|
(1) |
SEA GLORIUS SHIPPING CO.
("
Sea Glorius
")
and
SEA GENIUS SHIPPING CO.
("
Sea Genius
"),
each a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands, as joint and several
Borrowers
;
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
,
a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, Marshall Islands, as
Corporate Guarantor
;
|
(3) |
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, as
Lenders
;
|
(4) |
HSH NORDBANK AG
acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as
Agent
;
|
(5) |
HSH NORDBANK AG
acting through its office is at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as
Mandated Lead Arranger
;
|
(6) |
HSH NORDBANK AG
acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as
Security Trustee
; and
|
(7) |
HSH NORDBANK AG
acting through its office at Martensdamm 6, D-24103 Kiel, Germany, as
Swap Bank
.
|
(A) |
By the Loan Agreement, the Lenders agreed to make available to the Borrowers a facility of (originally) up to $44,430,400, of which $42,331,494 is outstanding at the date of this Agreement.
|
(B) |
By a guarantee dated 1 September 2015 (as amended and supplemented by a supplemental letter dated 23 February 2017) and made by the Corporate Guarantor in favour of the Security Trustee, the Corporate Guarantor guaranteed the obligations of the Borrowers under the Loan Agreement.
|
(C) |
The Obligors have requested that the Lenders and the other Creditor Parties give their consent to (inter alia):
|
(i) |
waive the application of the security cover requirement under clause 15.1 (
Minimum required security cover
) of the Loan Agreement until 30 September 2018 (inclusive);
|
(ii) |
amend the security cover percentage requirement under clause 15.1 (
Minimum required security cover
) of the Loan Agreement as follows:
|
(A) |
at any time during the period commencing on 1 October 2018 and ending on 31 March 2019 (inclusive), 100 per cent.;
|
(B) |
at any time during the period commencing on 1 April 2019 and ending on 30 September 2019 (inclusive), 111 per cent.; and
|
(C) |
from 1 October 2019 and at all times thereafter and throughout the remainder of the Security Period, 120 per cent.,
|
(iii) |
amend the financial covenants of the Corporate Guarantor under paragraphs (a) and (b) of clause 11.15 (
Financial Covenants
) of the Corporate Guarantee to be read and construed as follows:
|
(A) |
the Leverage Ratio shall not exceed:
|
(i) |
at any time during the period commencing on the effective date of the Supplemental Agreement (inclusive) and ending on 31 December 2018 (inclusive), 85 per cent.;
|
(ii) |
at any time during the period commencing on 1 January 2019 and ending on 31 March 2019 (inclusive), 80 per cent.; and
|
(iii) |
from 1 April 2019 and at all times thereafter during the Security Period, 75 per cent.; and
|
(B) |
the ratio of EBITDA to interest payments (less any earned interest) (as shown in the Applicable Accounts) shall not be less than:
|
(i) |
at any time during the period commencing on the effective date of the Supplemental Agreement (inclusive) and ending on 31 March 2019 (inclusive), 1.20:1; and
|
(ii) |
from 1 April 2019 and at all times thereafter during the Security Period, 2:1,
|
(iv) |
amend the financial covenants of the Corporate Guarantor under paragraph (c) of clause 11.15 (
Financial Covenants
) of the Corporate Guarantee to include restricted cash (if any),
|
(D) |
The Lenders and the other Creditor Parties consent to the Request subject to, inter alia, the following conditions:
|
(v) |
execution of this Agreement by the Obligors and the Fee Letter and the Mortgage Addenda by the Borrowers;
|
(vi) |
payment of a non-refundable relaxation fee in the amounts and at the times agreed in the Fee Letter; and
|
(vii) |
increase of the Applicable Margin (as defined in the Loan Agreement) to 3.75 per cent. per annum with effect on and from 1 April 2018.
|
(E) |
This Agreement sets out the terms and conditions on which the Lenders and the other Creditor Parties agree, with effect on and from the Effective Date, at the request of the Obligors, to the Request and to the consequential amendments of the Loan Agreement and the other Finance Documents in connection with those matters.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the first preferred Marshall Islands mortgage over the motor vessel "GLORIUSHIP" dated 3 November 2015 and executed by Sea Glorius in favour of the Security Trustee; and
|
(b) |
the first preferred Marshall Islands mortgage over the motor vessel "GENIUSHIP" dated 13 October 2015 and executed by Sea Genius in favour of the Security Trustee,
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Loan Agreement
|
1.4 |
Agreed forms of new, and supplements to, Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrowers and the Agent); or
|
(b) |
in any other form agreed in writing between the Borrowers and the Agent acting with the authorisation of the Majority Lenders or, where clause 27.2 (
exceptions
) of the Loan Agreement applies, all the Lenders.
|
1.5 |
Designation as a Finance Document
|
1.6 |
Third party rights
|
2 |
AGREEMENT OF THE CREDITOR PARTIES
|
2.1 |
Agreement of the Creditor Parties
|
(a) |
the Request; and
|
(b) |
the consequential amendments to the Facility Agreement, the Corporate Guarantee and the other Finance Documents.
|
2.2 |
Effective Date
|
3 |
CONDITIONS PRECEDENT
|
(a) |
no Event of Default continuing on the date of this Agreement and the Effective Date or resulting from the occurrence of the Effective Date;
|
(b) |
any repeating representation under clause 10 (
Representations and Warranties
) of the Loan Agreement and under clause 10 (
Representations and Warranties
) of the Corporate Guarantee to be made by each Obligor being true on the date of this Agreement and the Effective Date; and
|
(c) |
the Agent having received all of the documents and other evidence listed in Schedule 2 (
Conditions Precedent
) in form and substance satisfactory to the Agent on or before the Effective Date.
|
4 |
REPRESENTATIONS
|
4.1 |
Loan Agreement representations
|
4.2 |
Finance Document representations
|
5 |
AMENDMENTS TO LOAN AGREEMENT, CORPORATE GUARANTEE AND OTHER FINANCE DOCUMENTS
|
5.1 |
Specific amendments to the Loan Agreement
|
(a) |
by inserting in clause 1.1 thereof the following new definitions in the requisite alphabetical order:
|
(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) |
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
|
(b) |
by deleting the definition of "Applicable Margin" in clause 1.1 thereof in its entirety and replacing it with the following definition:
|
(a) |
Advance A, Tranche A and Advance B, Tranche A:
|
(i) |
from the date of this Agreement until 31 March 2018 (inclusive), 3.40 per cent. per annum; and
|
(ii) |
from 1 April 2018 and at all times thereafter and throughout the remainder of the Security Period, 3.75 per cent. per annum; and
|
(b) |
Advance A, Tranche B and Advance B, Tranche B:
|
(i) |
from the date of this Agreement until 31 March 2018 (inclusive), 3.60 per cent. per annum; and
|
(ii) |
from 1 April 2018 and at all times thereafter and throughout the remainder of the Security Period, 3.75 per cent. per annum;";
|
(c) |
by deleting the definition of "Offering Prepayment" in clause 1.1 thereof in its entirety and any reference to it throughout the Loan Agreement;
|
(d) |
by deleting clause 5.17 thereof in its entirety;
|
(e) |
by deleting clause 15.1 thereof in its entirety and replacing it with the following clause:
|
(a) |
the aggregate of the Market Value of the Mortgaged Ships; plus
|
(b) |
the net realisable value of any additional security previously provided under this Clause 15,
|
(i) |
at any time during the period commencing on 1 October 2018 and ending on 31 March 2019 (inclusive), 100 per cent.;
|
(ii) |
at any time during the period commencing on 1 April 2019 and ending on 30 September 2019 (inclusive), 111 per cent.; and
|
(iii) |
from 1 October 2019 and at all times thereafter and throughout the remainder of the Security Period, 120 per cent.,
|
(f) |
by deleting clause 15.8 thereof in its entirety and replacing it with the following clause:
|
(g) |
by inserting a new clause 29 (
Bail-In
) thereof as follows:
|
(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.
|
(h) |
the definition of, and references throughout to, each Finance Document shall be construed as if the same referred to that Finance Document as amended and supplemented by this Agreement; and
|
(i) |
by construing references throughout to "this Agreement" and other like expressions as if the same referred to the Loan Agreement as amended and supplemented by this Agreement.
|
5.2 |
Specific amendments to Corporate Guarantee
|
(a) |
by deleting the definition of "EBITDA" in clause 1.2 thereof in its entirety and replacing it with the following new definition:
|
(b) |
by deleting the definition of "Leverage Ratio" in clause 1.2 thereof and replacing it with the following new definition:
|
(c) |
by deleting the definition of "Guarantor's Total Liabilities" in clause 1.2 thereof in its entirety;
|
(d) |
by inserting in clause 1.2 thereof the following new definitions in the requisite alphabetical order:
|
(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) |
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
|
(ii) |
any similar or analogous powers under that Bail-In Legislation;
|
(e) |
by amending the cross-reference to "Clause 11.16" in paragraph (d) of clause 11.3 thereof to read "Clause 11.15";
|
(f) |
by deleting the words "31 December 2017" in the second sentence of clause 11.15 thereof and replacing them with the words "30 June 2018";
|
(g) |
by deleting the sub-paragraph (a) in clause 11.15 thereof in its entirety and replacing it with the following sub-paragraph:
|
(i) |
at any time during the period commencing on the effective date of the Supplemental Agreement (inclusive) and ending on 31 December 2018 (inclusive), 85 per cent.;
|
(ii) |
at any time during the period commencing on 1 January 2019 and ending on 31 March 2019 (inclusive), 80 per cent.; and
|
(iii) |
from 1 April 2019 and at all times thereafter during the Security Period, 75 per cent.;";
|
(h) |
by deleting the sub-paragraph (b) in clause 11.15 thereof in its entirety and replacing it with the following sub-paragraph:
|
(i) |
at any time during the period commencing on the effective date of the Supplemental Agreement (inclusive) and ending on 31 March 2019 (inclusive), 1.20:1; and
|
(ii) |
from 1 April 2019 and at all times thereafter during the Security Period, 2:1;";
|
(i) |
by deleting the words "free of any Security Interest" wherever referred in paragraph (c) of clause 11.15 thereof and replacing them with the words "including restricted cash (if any)";
|
(j) |
by amending the cross-reference to "Clause 11.16" in paragraphs (c) and (d) of clause 11.15 thereof to read "Clause 11.15";
|
(k) |
by inserting a new clause 17 (
Bail-In
) thereof as follows:
|
(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.
|
(l) |
the definition of, and references throughout each of the Finance Documents to, the Corporate Guarantee shall be construed as if the same referred to the Corporate Guarantee as amended and supplemented by this Agreement; and
|
(m) |
by construing references throughout the Corporate Guarantee to "this Guarantee", as if the same referred to the Corporate Guarantee as amended and supplemented by this Agreement.
|
5.3 |
Amendments to Finance Documents
|
(a) |
by including in the relevant clause (
Incorporation of Loan Agreement provisions
) of that Finance Document, a cross reference to clause 29 (
bail-in
) of the Loan Agreement as amended and supplemented by this Agreement;
|
(b) |
the definition of, and references throughout each of the Finance Documents to, the Mortgages shall be construed as if the same referred to the Mortgages as amended and supplemented by the Mortgage Addenda; and
|
(c) |
by construing references throughout each of the Finance Documents to "this Agreement", "this Deed" and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Agreement.
|
5.4 |
Finance Documents to remain in full force and effect
|
(a) |
the amendments to the Finance Documents contained or referred to in Clause 5.1 (
Specific amendments to the Loan Agreement
) and Clause 5.2 (
Specific amendments to Corporate Guarantee
) and the Mortgage Addenda; and
|
(b) |
such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.
|
6 |
FURTHER ASSURANCE
|
6.1 |
Further assurance
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the 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, acknowledgements, proxies and powers of attorney), as the Agent may specify (and in such form as the Agent may require in favour of the Agent or its nominee(s)) to implement the terms and provisions of this Agreement.
|
(b) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Trustee 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 Trustee may specify (and in such form as the Security Trustee may require in favour of the Security Trustee or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Trustee or protect the priority of the Security Interest or any right or any kind created or intended to be created under or evidenced by the Finance Documents as amended and supplemented by this Agreement or by the Mortgage Addenda (which may include the execution of a mortgage, charge, assignment) or for the exercise of any rights, powers and remedies of the Security Trustee, any receiver or any other Creditor Party provided by or pursuant to the Finance Documents as amended and supplemented by this Agreement or by the Mortgage Addenda or by law;
|
(ii) |
to confer on the Security Trustee or confer on the Creditor Parties Security Interest over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security Interest intended to be conferred by or pursuant to the Finance Documents as amended and supplemented by this Agreement or by the Mortgage Addenda;
|
(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 property being assigned, charged or pledged (as the case may be) under any Finance Document or to exercise any power specified in any Finance Document as amended and supplemented by this Agreement or by the Mortgage Addenda in respect of which the Security Interest has become enforceable; and/or
|
(iv) |
to enable or assist the Security Trustee 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 property being assigned, charged or pledged (as the case may be) under any Finance Document.
|
(c) |
Each Obligor shall 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 Interest conferred or intended to be conferred on the Security Trustee or any other Creditor Party by or pursuant to the Finance Documents as amended and supplemented by this Agreement or by the Mortgage Addenda.
|
6.2 |
Additional corporate action
|
(a) |
set out the text of a resolution of that Obligor's directors specifically authorising the execution of the document specified by the Agent or the Security Trustee as applicable; and
|
(b) |
state that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors and is valid under that Obligor's articles of association or other constitutional documents.
|
7 |
FEES
|
8 |
EXPENSES
|
9 |
NOTICES
|
10 |
COUNTERPARTS
|
11 |
GOVERNING LAW
|
12 |
ENFORCEMENT
|
12.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (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 12.1 (
Jurisdiction
) is for the benefit of the Creditor Parties only. As a result, no Creditor Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Creditor Parties may take concurrent proceedings in any number of jurisdictions.
|
12.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(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 Agent. Failing this, the Agent may appoint another agent for this purpose.
|
Lender
|
Lending Office
|
Commitment
(US Dollars) |
HSH Nordbank AG
|
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
44,430,400
|
1 |
Obligors
|
2 |
Security
|
2.1 |
A duly executed original of each Mortgage Addendum together with documentary evidence that each Mortgage Addendum has been duly registered as a valid addendum to the relevant Mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
|
2.2 |
A duly executed original of this Agreement and the Fee Letter.
|
3 |
Legal opinions
|
3.1 |
If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Agent and the Security Trustee in the relevant jurisdiction, substantially in the form distributed to the Lenders before signing this Agreement.
|
3.2 |
Legal opinions of the legal advisers to the Agent and the Security Trustee in the jurisdiction of the Approved Flag of the Ships and such other relevant jurisdictions as the Agent may require.
|
4 |
Other documents and evidence
|
4.1 |
A copy of any other authorisation or other document, opinion or assurance which the 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 this Agreement, the Fee Letter and the Mortgage Addenda or for the validity and enforceability of any Finance Document as amended and supplemented by this Agreement or by the Mortgage Addenda.
|
4.2 |
Evidence that the agent referred to in Clause 12.2 has accepted its appointment as agent for the service of process under this Agreement.
|
4.3 |
Evidence that any fees due and payable under the Fee Letter pursuant to Clause 7 (
Fees
) have been paid.
|
4.4 |
Evidence that any expenses then due from the Borrowers pursuant to Clause 8 (
Expenses
) have been paid.
|
SIGNED
by Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
SEA GLORIUS SHIPPING CO.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
SEA GENIUS SHIPPING CO.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
HSH NORDBANK AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
HSH NORDBANK AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
HSH NORDBANK AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
HSH NORDBANK AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
SIGNED
by Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis |
duly authorised attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
HSH NORDBANK AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Andreas Giakoumelos |
Witness' name: Andreas Giakoumelos
|
)
|
|
Witness' address: 348 Syngrou Avenue
176 74 Kallithea
Athens, Greece
|
)
|
|
/s/ Nikoleos Frantzeskalas | /s/ illegible | |
for and on behalf of
|
for and on behalf of
|
|
Fidelity Marine Inc.
|
V. Ships Limited
|
(A) |
Section 1.1 of the Note is deleted in its entirety and replaced with the following:
|
(B) |
Section 1.6 of the Note is deleted in its entirety and replaced with the following:
|
(C) |
Each other reference in the Note to "$21,165,000" is deleted and replaced with "$24,665,000."
|
(D) |
Section 1.7 is deleted in its entirety and Section 1.8 of the Note is deleted in its entirety and is replaced with the following:
|
(F) |
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 Tenth Amendment.
|
(G) |
Counterparts; Effectiveness
. This
Tenth
Amendment 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
Tenth
Amendment shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
|
(H) |
Governing Law
. The laws of the State of New York shall govern the enforceability and validity of this Agreement, 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.
|
By:
|
/s/ Stamatios Tsantanis | ||
Name: Stamatios Tsantanis
Title: Chief Executive Officer
|
By:
|
/s/ illegible | ||
Name:
Title:
|
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) |
an original of this Letter duly executed by the Lender and acknowledged by the Borrowers and the Guarantor;
|
(b) |
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;
|
(c) |
evidence satisfactory to the Lender that a non-refundable amendment fee in the amount of US$40,000 has been paid by the Borrowers to the Lender; and
|
(d) |
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 |
Amendments to the Facility Agreement
|
(a) |
by deleting clause 19.34 thereof in its entirety and replacing it with the following new clause 19.34:
|
(b) |
by deleting sub-paragraph (a) in clause 21.1 thereof in its entirety and replacing it with the following new sub-paragraph (a):
|
"(a) |
the Leverage Ratio shall not exceed:
|
(i) |
at any time during the period commencing on 1 May 2018 and ending on 31 December 2018 (inclusive), 85 per cent.;
|
(ii) |
at any time during the period commencing on 1 January 2019 and ending on 31 March 2019 (inclusive), 80 per cent.; and
|
(iii) |
from 1 April 2019 and at all times thereafter and throughout the remainder of the Security Period, 75 per cent.;";
|
(c) |
by deleting sub-paragraph (b) in clause 21.1 thereof in its entirety and replacing it with the following new sub-paragraph (b):
|
"(b) |
the ratio of EBITDA to Net Interest Expense shall not be less than:
|
(i) |
at any time during the period commencing on 1 May 2018 and ending on 31 March 2019 (inclusive), 1.20:1; and
|
(d) |
by deleting the definition of "Leverage Ratio" in clause 21.3 thereof in its entirety and replacing it with the following new definition:
|
(e) |
by inserting the definitions of "Group's Net Debt", "Group's Total Debt" and "Restricted Cash" in the requisite alphabetical order in clause 21.3 thereof as follows:
|
(f) |
by deleting clause 25.1 thereof in its entirety and replacing it with the following new clause 25.1:
|
(a) |
at any time during the period commencing on 1 May 2018 and ending on 30 September 2018 (inclusive), that the Security Cover Ratio is below 100 per cent.;
|
(b) |
at any time during the period commencing on 1 October 2018 and ending on 30 June 2019 (inclusive), that the Security Cover Ratio is below 111 per cent.; and
|
(c) |
from 1 July 2019 and at all times thereafter and throughout the remainder of the Security Period, that the Security Cover Ratio is below 120 per cent..";
|
(g) |
by deleting all references in Part A of Schedule 1 to "16 Grigoriou Lambraki" and replacing them with "154 Vouliagmenis Avenue"; and
|
(h) |
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.
|
3 |
Representations and Warranties
|
4 |
Re-affirmation of Facility Agreement
|
5 |
Costs and Expenses
|
6 |
Notices
|
7 |
Counterparts
|
8 |
Governing law
|
9 |
Process Agent
|
/s/ illegible | /s/ illegible | |
for and on behalf of
|
for and on behalf of
|
|
UniCredit Bank AG
|
UniCredit Bank AG
|
|
as Lender
|
as Lender
|
To: |
PREMIER MARINE CO.
|
From: |
UniCredit Bank AG
|
10 October 2018
|
1 |
We refer to the Facility Agreement. Words and expressions defined in the Facility Agreement shall have the same meaning when used in this Letter and for the purposes of this Letter.
|
2 |
In this Letter:
|
3 |
We also refer to:
|
(a) |
the upcoming sale of:
|
(i) |
Ship B (the "
First Sale
"), pursuant to a memorandum of agreement dated 20 September 2018 (as from to time amended and/or supplemented, the "
First MOA
") and made between Gladiator Shipping Co. ("
Gladiator
") as seller and Xiang B8 HK International Ship Lease Co., Limited as buyer (the "
First Buyer
");
|
(ii) |
Ship C (the "
Second
Sale
" and, together with the First Sale, the "
Sales
" and each a "
Sale
"), pursuant to a memorandum of agreement dated 20 September 2018 (as from time to time amended and/or supplemented, the "
Second MOA
") and made between Guardian Shipping Co. ("
Guardian
") as seller and Xiang B7 HK International Ship Lease Co., Limited as buyer (the "
Second Buyer
");
|
(b) |
the purchase price of $10,960,000 to be paid by the First Buyer to Gladiator under the First MOA (the "
First Sale Proceeds
") and be credited to the account held in the name of the Lender in Hamburg (account number: 0497 415 001 002 and IBAN: DE13 2003 0000 0415 0010 02, the "
Lender's Account
") and further released to the account held with the Lender
|
(c) |
the purchase price of $11,700,000 to be paid by the Second Buyer to Guardian under the Second MOA (the "
Second Sale Proceeds
" and together with the First Sale Proceeds, the "
Sales Proceeds
") and be credited to the Lender's Account and further released to the account held with the Lender in Hamburg in the name of Guardian (account number: 0497 16369595 and IBAN: DE73 2003 0000 0016 369 595, (the "
Guardian's Earnings Account
")) on the date on which the Second Sale is completed by delivery of Ship C to the Second Buyer;
|
(d) |
the requirement that, following each Sale, the Borrowers shall prepay on the Relevant Date the Relevant Percentage of the Loan pursuant to clause 7.4 (
Mandatory Prepayment on Sale or Total Loss
) of the Facility Agreement; and
|
(e) |
the scheduled acquisition (the "
Acquisition
") of m.v. "CPO OCEANIA" (the "
New Ship
") by Fellow Shipping Co. (the "
New Borrower
") for a purchase price of $28,700,000, with such acquisition to be completed by no later than 15 December 2018 (the "
Waiver Period
").
|
4 |
The Request
|
(i) |
agrees to defer payment of the amount of $1,552,000, representing the amount of the Repayment Instalment which fell due on 25 September 2018 (the "
Deferred Amount
") until the earlier of (a) the date on which the First Sale is completed and (b) 18 October 2018;
|
(ii) |
consents to the Sales;
|
(iii) |
notwithstanding any contrary provisions of the Facility Agreement, waives the requirement to apply the Sales Proceeds (or the relevant part thereof) in accordance with clause 7.4 (
Mandatory Prepayment on Sale or Total Loss
) of the Facility Agreement during the Waiver Period; and
|
(iv) |
consents to the application of the Sales Proceeds (or any part thereof) towards the Acquisition of the New Ship by the New Borrower during the Waiver Period,
|
5 |
Agreement of the Lender
|
6 |
Agreement of the Parties
|
(a) |
an aggregate amount of $11,057,087, representing:
|
(i) |
90% of the First Sale Proceeds together with any amounts payable in respect of lubricants and oils (amounting to a total of $10,102,540.56), which will be released pursuant to the release letter at the date of the First Sale; and
|
(ii) |
$954,546.44 (the "
Borrower's Equity
", held at the date of this Letter in the Gladiator's Earnings Account,
|
(b) |
an aggregate amount of $ 10,530,000 (representing 90% of the Second Sale Proceeds (which shall be deposited in the Lender's Account) shall be received by the Lender prior to the release of the mortgage registered over Ship C in the Lender's favour and the completion of the Second Sale;
|
(c) |
upon completion of each Sale, the Borrowers hereby irrevocably and unconditionally authorise the Lender to transfer from the Lender's Account to Gladiator's Earnings Account and the Guardian's Earnings Account respectively, an amount equal to the Sale Proceeds relevant to that ship;
|
(d) |
upon completion of the First Sale, the Borrowers hereby irrevocably and unconditionally authorise the Lender to proceed with debiting the Gladiator's Earnings Account with the amount of $1,552,000 towards payment of the Deferred Amount;
|
(e) |
upon completion of the First Sale, the Borrowers hereby irrevocably and unconditionally authorise the Lender to block $9,505,087 (the "
Blocked Amount I
") (representing the outstanding loan amount relating to Ship B after payment of the instalment originally due on Sep 25, 2018 in accordance with clause 7.4 (
Mandatory Prepayment on Sale or Total Loss
) of the Facility Agreement);
|
(f) |
upon completion of the Second Sale, the Borrowers hereby irrevocably and unconditionally authorise the Lender to block $10,331,617 (the "
Blocked Amount II
" and together with Blocked Amount I, the "
Blocked Amounts
") (representing the outstanding loan amount relating to Ship C after payment of the instalment originally due on Sep 25, 2018 in accordance with clause 7.4 (
Mandatory Prepayment on Sale or Total Loss
) of the Facility Agreement);
|
(g) |
if the First Sale is not completed on or prior to 18 October 2018 the Borrowers hereby irrevocably and unconditionally authorise the Lender to debit the Gladiator's Earnings Account for payment of the Deferred Amount;
|
(h) |
upon receipt of evidence satisfactory in all respects to the Lender regarding the Acquisition (including, for the avoidance of doubt, the receipt of the duly executed memorandum of agreement in respect of the New Ship), the Lender will instruct its lawyers to proceed with the preparation of the required documentation for the purpose of releasing Guardian and Gladiator from their obligations and liabilities under the Facility Agreement and the New Borrower adhering to and becoming a new party thereto;
|
(i) |
the Lender consents to the application of the Sales Proceeds (or any part thereof) in completing the Acquisition;
|
(j) |
if the Acquisition is not completed by the end of the Waiver Period, the Blocked Amounts shall, on the first Business Day falling after the last day of the Waiver Period, be applied in accordance with clause 7.4 (Mandatory Prepayment on Sale or Total Loss) of the Facility Agreement (and the Borrowers hereby irrevocably and unconditionally authorise the Lender to make that application);
|
(k) |
on the first Business Day falling after the completion of the Acquisition, any Sales Proceeds which have not been applied towards the Acquisition shall be applied in accordance with clause 7.4 (Mandatory Prepayment on Sale or Total Loss) of the Facility Agreement (and the Borrowers hereby irrevocably and unconditionally authorise the Lender to make that application); and
|
(l) |
accrued interest and any Break Costs shall be paid by the Borrowers separately.
|
7 |
Conditions Precedent
|
(i) |
documents of the kind specified in Schedule 2, Part A, paragraph 1 of the Facility Agreement in relation to each Borrower and the Guarantor in connection with the execution of this Letter and the Mortgage Addendum (as defined below), updated with appropriate modifications to refer to this Letter;
|
(ii) |
an original of this Letter duly executed by the Lender, acknowledged by the Borrowers and the Guarantor and countersigned by the Approved Manager;
|
(iii) |
evidence of the payment of the Deposit (as such term is defined in the First MOA) in the amount of $1,096,000 to the account of Ince & Co. Hong Kong acting as the escrow agent pursuant to the First MOA (Account No. 500-272331-274 with The Hong Kong and Shanghai Banking Corporation Limited, Hong Kong Office of 1 Queen's Road Central, Hong Kong);
|
(iv) |
evidence satisfactory to the Lender that a non-refundable restructuring fee in the amount of US$8,000 has been paid by the Borrowers to the Lender;
|
(v) |
certified copies of all documents (if any) evidencing any other necessary action, approvals or consents with respect to this Letter (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Lender deems appropriate;
|
(vi) |
favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws of the Republic of the Marshall Islands and such other relevant jurisdiction as the Lender may require; and
|
(vii) |
documentary evidence that the agent for service of process named in clause 42.2 (
Service of Process
) of the Facility Agreement has accepted its appointment for service of process under this Letter.
|
8 |
Amendments to the Facility Agreement
|
(a) |
by deleting clause 6.1 thereof in its entirety and replacing it with the following new clause 6.1:
|
Date
|
Repayment Instalment Amount ($)
|
||
18 October 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.
|
9 |
Representations and Warranties
|
10 |
Re-affirmation of Facility Agreement
|
11 |
Costs and Expenses
|
12 |
Notices
|
13 |
Counterparts
|
14 |
Governing law
|
/s/ illegible
|
/s/ illegible
|
||
for and on behalf of
UniCredit Bank AG
as Lender
|
for and on behalf of
UniCredit Bank AG
as Lender
|
SECOND SUPPLEMENTAL AGREEMENT
in relation to a Loan Agreement dated
4
th
November, 2015
for a loan facility of (initially)
US$
33,750,173
|
CLAUSE
|
HEADINGS
|
PAGE
|
1.
|
Definitions
|
2
|
2.
|
Borrower's Acknowledgment of Indebtedness
|
4
|
3.
|
Representations and warranties
|
4
|
4.
|
Agreement of the Lender
|
5
|
5.
|
Conditions
|
5
|
6.
|
Variations to the Principal Agreement
|
7
|
7.
|
Continuance of Principal Agreement and the Security Documents
|
12
|
8.
|
Entire agreement and amendment
|
12
|
9.
|
Fees and expenses
|
12
|
10.
|
Miscellaneous
|
13
|
11.
|
Entire agreement and amendment; effect on Principal Agreement
|
13
|
12.
|
Applicable law and jurisdiction
|
13
|
(1) |
ALPHA
BANK
A.E.
, a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head office at 40 Stadiou Street, Athens GR 102 52, Greece, acting, except as otherwise herein provided through its office at 93 Akti Miaouli, Piraeus, Greece
(hereinafter called the
"Lender",
which expression shall include its successors and assigns);
|
(2) |
SQUIRE OCEAN NAVIGATION CO.
,
a company duly incorporated and validly existing under the laws of the Republic of Liberia having its registered office at 80 Broad Street, Monrovia, Republic of Liberia
(hereinafter called the "
Borrower"
,
which expression shall include its successors
); and
|
(3) |
LEADER SHIPPING CO.
,
a company duly incorporated and validly existing under the laws of the Republic of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
(hereinafter called the "
Collateral Owner",
which expression shall include its successors
);
|
(A) |
the Borrower and the Collateral Owner hereby acknowledge and confirm that (a) the Lender has advanced to the Borrower, the full amount of the Loan in the principal amount of United States Dollars Thirty three million seven hundred fifty thousand one hundred seventy three ($33,750,173) and (b) as of the Effective Date the principal amount of
United States Dollars
Thirty two million sixty two thousand six hundred fifty one and fifty cents ($32,062,651.50)
in respect of the Loan remains outstanding;
|
(B) |
pursuant to a Guarantee dated 4
th
November
2015 as amended and/or supplemented by a first
deed
of amendment of guarantee dated 28
th
July, 2016 (the "
First Amendment
")
(the said Guarantee as amended and/or supplemented by the First Amendment is hereinafter called the
"Corporate Guarantee"
),
Seanergy Maritime Holdings Corp
., of the Marshall Islands (the "
Corporate Guarantor
") irrevocably and
|
(C) |
the Borrower and the other Security Parties have requested the Lender to grant its consent to
(inter alia):
|
1. |
Definitions
|
1.1 |
Words and expressions defined in the Principal Agreement and not otherwise defined herein (including the Recitals hereto) shall have the same meanings when used in this Agreement.
|
1.2 |
In addition, in this Agreement the words and expressions specified below shall have the meanings attributed to them below:
|
1.3 |
(a) Where the context so admits words importing the singular number only shall include the plural and vice versa and words importing persons shall include firms and corporations, (b) clause headings are inserted for convenience of reference only and shall be ignored in construing this Agreement, (c) references to Clauses are to clauses of this Agreement save as may be otherwise expressly provided in this Agreement and (d) all capitalised terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
|
2. |
Borrower's Acknowledgment of Indebtedness
|
3. |
Representations and warranties
|
3.1 |
The Borrower and the Collateral Owner hereby represent and warrant to the Lender as at the date hereof that the representations and warranties set forth in the Principal Agreement and the Security Documents (updated mutatis mutandis to the date of this Agreement) are (and will be on the Effective Date) true and correct as if all references therein to "
this Agreement
" were references to the Principal Agreement as amended and supplemented by this Agreement.
|
3.2 |
In addition to the above, the Borrower and the Collateral Owner hereby represent and warrant to the Lender as at the date of this Agreement that:
|
a. |
each of the Security Parties is duly formed, is validly existing and in good standing under the laws of the place of its incorporation and has full power to carry on its business as it is now being conducted and to enter into and perform its obligations under the Principal Agreement and this Agreement and has complied with all statutory and other requirements relative to its business and does not have an established place of business in any part of the United Kingdom or the USA;
|
b. |
all necessary licences, consents and authorities, governmental or otherwise under this Agreement and the Principal Agreement have been obtained and, as of the date of this Agreement, no further consents or authorities are necessary for any of the Security Parties to enter into this Agreement or otherwise perform its obligations hereunder;
|
c. |
this Agreement constitutes the legal, valid and binding obligations of the Security Parties thereto enforceable in accordance with its terms;
|
d. |
the execution and delivery of, and the performance of the provisions of this Agreement do not, and will not contravene any applicable law or regulation
|
e. |
no action, suit or proceeding is pending or threatened against the Borrower and the Collateral Owner or its assets before any court, board of arbitration or administrative agency which could or might result in any material adverse change in the business or condition (financial or otherwise) of any of the Borrower or the other Security Parties;
|
f. |
none of the Security Parties is not and at the Effective Date will not be in default under any agreement by which it is or will be at the Effective Date bound or in respect of any financial commitment, or obligation;
|
g. |
the
Corporate
Guarantor maintains Liquidity in an amount equal to $500,000 per Fleet Vessel and an amount equal to $500,000 for the Vessel is maintained in the Earnings Account;
|
h. |
No US Tax Obligor: None of the Security Parties is a US Tax Obligor; and
|
i. |
Sanctions
:
|
(i) |
None of the Security Parties is a Prohibited Person nor is controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and none of the Borrower, the Collateral Owner or the Corporate Guarantor controls a Prohibited Person; and
|
(ii) |
no proceeds of the Loan have been made available, directly or indirectly, to or for the benefit of a Prohibited Person or otherwise shall be, directly or indirectly, applied in a manner or for a purpose prohibited by Applicable Sanctions; and
|
3.3 |
The representations and warranties of the Borrower and the Collateral Owner in this Agreement shall survive the execution of this Agreement and shall be deemed to be repeated at the commencement of each Interest Period.
|
4. |
Agreement of the Lender
|
5. |
Conditions
|
5.1 |
The agreement of the Lender contained in Clause 4 shall be expressly subject to the condition that the Lender shall have received on or before the Effective Date in form and substance satisfactory to the Lender and its legal advisers:
|
a. |
a certified true copy of the certificate of good standing or other equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the Borrower, the Collateral Owner and the Corporate Guarantor;
|
b. |
certified and duly legalised copies of resolutions duly passed by the Board of Directors of the Borrower, the Collateral Owner and the Corporate Guarantor and certified and duly legalised copies of the resolutions passed at a meeting of the shareholders of the Borrower, the Collateral Owner and the Corporate Guarantor (and of any corporate shareholder thereof), if applicable, evidencing approval of this Agreement and/or the Collateral Security Documents and/or the
Guarantee Deed of Amendment No. 2 (as the case may be)
and authorising appropriate officers or attorneys–in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
|
c. |
all documents evidencing any other necessary action or approvals or consents with respect to this Agreement, including, but not limited to, certified and duly legalised Certificates of Incumbency issued by any of the Directors of the Borrower, the Collateral Owner and the Corporate Guarantor evidencing approval of this Agreement and authorising appropriate officers or attorneys-in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
|
d. |
the original of any power(s) of attorney issued in favour of any person executing this Agreement on behalf of the Borrower, the Collateral Owner, and the Corporate Guarantor;
|
e. |
all documents evidencing any other necessary action or approvals or consents with respect to this Agreement;
|
f. |
such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors as the Lender shall require;
|
g. |
evidence satisfactory to the Lender that the Collateral Vessel is duly registered under the laws and flag of the Commonwealth of the Bahamas at the Ships Registry of the port of Nassau in the ownership of the Collateral Owner;
|
h. |
evidence that the Collateral Vessel is fully classed with the highest classification available with a Classification Society that is a full member of IACS and such classification is and will be free of all overdue requirements, recommendations or notations affecting class (other than those notified in writing to the Lender and accepted by the Lender in writing) and with all trading and other class certificates, national and international, valid and in full force and effect;
|
i. |
duly executed originals of each of the Collateral Security Documents and the
Guarantee Deed of Amendment No. 2
and, where appropriate, duly registered in favour of the Lender;
|
j. |
evidence satisfactory to the Lender that the Collateral Mortgage has been duly registered on the Collateral Vessel as a second priority ship mortgage in favour of the Lender in accordance with the laws of the Commonwealth of the Bahamas;
|
k. |
all necessary confirmation by the Collateral Vessel's insurers that they will issue their letters of undertaking and endorse notices of assignment and loss payable clauses on the insurances, satisfactory to the Lender in its discretion;
|
l. |
evidence satisfactory to the Lender that
an amount equal to $500,000 for the Vessel is maintained in the Earnings Account;
and
|
l. |
evidence that the Collateral Vessel is in compliance with the terms of the ISM Code and the ISPS Code;
|
6. |
Variations to the Principal Agreement
|
6.1 |
In consideration of the agreement of the Lender contained in Clause 4, the Borrower hereby agrees with the Lender that (subject to the satisfaction of the conditions precedent contained in Clause 5, the provisions of the Principal Agreement shall be varied and/or amended and/or supplemented as follows:
|
a. |
with effect as from the Effective Date, the following new definitions shall be added to Clause 1.2
(
Definitions
)
of the Principal Agreement reading as follows:
|
b. |
with effect as from the Effective Date, the following definitions of Clause 1.2 (
Definitions
) of the Principal Agreement shall be amended so as to read as follows:
|
c. |
with effect as from the Effective Date, paragraph (m) (
Shareholdings
) of Clause 6.1 (
Continuing
Representations and Warranties
)
of the Principal Agreement shall be amended to read as follows:
|
i. |
the control of the
Corporate
Guarantor and
the voting rights attaching to at
least 51% of
the shares issued and outstanding in the share capital of the Corporate Guarantor (including all shares issuable upon exercise of the conversion option under the Notes)
are and at least 51% of
the shares issued and outstanding in the share capital of the Corporate Guarantor (including all shares issuable upon exercise of the conversion option under the Notes) and the voting rights attaching to such shares shall, throughout the Security Period, be
ultimately beneficially held directly or indirectly by the person(s) disclosed to the Lender at the negotiation of this Agreement; and
|
ii. |
no change has been made directly or indirectly in the ownership, beneficial ownership, control or management of the Borrower or any share therein (including all shares issuable upon exercise of the conversion option under the Notes) or of the Vessel (especially concerning class or flag);
|
iii. |
no change has been made directly or indirectly in the ultimate beneficial ownership of any of the shares in the Corporate Guarantor or in the ultimate control of the voting rights attaching to any of those shares (including all shares issuable upon exercise of the conversion option under the Notes) from that existing on the date of this Agreement which results in the person(s) disclosed by the Borrower to the Lender in the negotiation of this Agreement not having at least 51% of the shares issued and outstanding in the share
|
d. |
with effect as from the Effective Date, the reference to "1
st
January, 2018" in Clause 8.5(a) (
Security Shortfall
) of the Principal Agreement, shall be deleted and replaced with "1
st
April, 2019".
|
e. |
with effect as from the Effective Date, Clause 8.6 (
Additional Financial Covenants - Compliance Certificate
)
of the Principal Agreement shall be amended to read as follows:
|
" 8.6 |
"
Additional Financial Covenants - Compliance Certificate
.
The Borrower will ensure that, based on the relevant Accounting Information for that Financial Year or the relevant period, the Corporate Guarantor shall comply with the financial covenants set out below:
|
(a) |
Liquidity
:
the
Corporate
Guarantor shall procure and ensure that it is maintained throughout the Security Period, Corporate Liquidity (
including any contractually committed but undrawn parts of the Notes)
in an amount equal to $500,000 per Fleet Vessel;
|
(b) |
Leverage
:
the Corporate Leverage Ratio of the
Corporate
Guarantor will not be,
(i) at the end of 31
st
December, 2018, higher than 0.85:1.0 , the compliance with such obligation to be tested on each Financial Semester Day starting from the 1st July, 2018; (ii) on 31
st
March, 2019, higher than 0.80:1.0 , and (iii) from 1
st
June, 2019 and at the end of any Accounting Period, higher than 0.75:1.0, the compliance with such obligation to be tested on each Financial Semester Day starting from the 30
th
June, 2019;
|
(c) |
EBITDA
: the consolidated interest cover ratio for the Accounting Period (EBITDA to Net Interest Expense) shall not be (i) until and including the 31
st
March 2019, lower than 1.2:1, the compliance with such obligation to be tested on each Financial Semester Day starting from the 1st July, 2018 and (ii) as from 1
st
April, 2019 until the expiration of the Security Period, lower than 2:1, the compliance with such obligation to be tested on each Financial Semester Day starting from the 1
st
April, 2019;
|
(d) |
Compliance Certificate
:
ensure that
at the end of each semester to be delivered to the Lender a Compliance Certificate in the form provided in Schedule 3 of this Agreement, duly completed and supported by reasonably detailed calculations of the underlying covenants to be delivered to the Lender; such Compliance Certificate to be provided as follows: (i) with respect to each Financial Year as soon as practicable but not later than 120 days after the end of the financial period to which it relates and (ii) with respect to each semester ending on the 30
th
of June of each Financial Year as soon as practicable but not later than 90 days after the end of such semester, and provided that the first Compliance Certificate to be delivered by the Borrower to the Lender will be with respect to the six month period ending 30th June 2018.
|
(e) |
The expressions used in this Clause 8.6 shall be construed in accordance with the law and the
Applicable Accounting Principles
as used in the Accounting Information produced in accordance with sub-Clause 8.1(e) and for the purposes of this Agreement:
|
(i) |
in respect of any deposit held with the Lender, security created to secure the obligations of the Borrower under the Loan Agreement;
|
(ii) |
in respect of deposits held with other lenders of the Group, security created to secure the obligations of the respective borrower(s) under the respective loan agreement(s); and
|
(iii) |
in respect of deposits held with other lenders of the Group as drydocking reserve cash under the respective loan agreement(s)
|
(f) |
Determination of defined terms
: All the terms defined in this Clause 8.6 and used in this Clause 8.6, and other accounting terms used in this Clause 8.6, are to be determined on a consolidated basis and (except as items are expressly included or excluded in the relevant definition or provision) are used and shall be construed in accordance with the Applicable Accounting Principles and as determined from any relevant Accounting Information.
|
(g) |
Compliance
: The compliance of the
Corporate
Guarantor with the undertakings set out in Clause 8.6 shall be determined by the Lender in accordance with the Applicable Accounting Principles (and such determination shall, in the absence of manifest error, be conclusive on the
Corporate
Guarantor) on the basis of calculations made by the Lender by reference to the relevant Accounting Information delivered to the Lender pursuant to Clause 8.1(e).
|
(h) |
Calculations
: For the purposes of this Clause 8.6: (a) no item shall be deducted or credited more than once in any calculation; and (b) any amount expressed in a currency other than Dollars shall be converted into Dollars in accordance with the Applicable Accounting Principles.
|
f. |
with effect as from the Effective Date, the following is added at the end of Clause 13.2 (
Earnings Account
) of the Principal Agreement reading as follows:
|
g. |
with effect as from the Effective Date, paragraph (c)(i) of Clause 16.1(
Notices
) shall be amended so as to read as follows:
|
6.2 |
All references in the Principal Agreement to
"
this Agreement
", "
hereunder
"
and the like
and all references
in the Security Documents to the
"
Loan Agreement
"
shall be construed as references to the Principal Agreement as amended and/or supplemented by this Agreement.
|
7. |
Continuance of Principal Agreement and the Security Documents
|
7.1 |
Save for the alterations to the Principal Agreement, and the Security Documents made or to be made pursuant to this Agreement, and such further modifications (if any) thereto as may be necessary to make the same consistent with the terms of this Agreement, the Principal Agreement shall remain in full force and effect and the security constituted by the Security Documents executed by the Borrower and the other Security Parties
shall continue to remain valid and enforceable and the Borrower and the Guarantors hereby jointly and severally reconfirm their respective obligations under the Principal Agreement as hereby amended and under the Security Documents to which each of them is a party.
|
8. |
Entire agreement and amendment
|
8.1 |
The Principal Agreement, the other Security Documents, and this Agreement represent the entire agreement among the parties hereto with respect to the subject matter hereof and supersede any prior expressions of intent or understanding with respect to this transaction and may be amended only by an instrument in writing executed by the parties to be bound or burdened thereby.
|
8.2 |
This Agreement is supplementary to and incorporated in the Principal Agreement, all terms and conditions whereof, including, but not limited to, provisions on payments, calculation of interest and Events of Default, shall apply to the performance and interpretation of this Agreement.
|
9. |
Fees and expenses
|
9.1 |
The agreement of the Lender to the amendment of the Principal Agreement as herein provided shall be expressly subject to the condition that the Borrower shall pay to the Lender a non-refundable up-front fee of an amount of United States Dollars Twenty thousand ($20,000) payable on the date hereof.
|
9.2 |
The Borrower agrees to pay to the Lender upon demand on a full indemnity basis and from time to time all costs, charges and expenses (including legal fees) incurred by the Lender in connection with the negotiation, preparation, execution and enforcement or attempted enforcement of this Agreement and any document executed pursuant thereto
|
9.3 |
The Borrower covenants and agrees to pay and discharge all stamp duties, registration and recording fees and charges and any other charges whatsoever and wheresoever payable or due in respect of this Agreement and/or any document executed pursuant hereto.
|
10. |
Miscellaneous
|
10.1 |
The provisions of Clause 14
(
Assignment, Transfer, Participation, Lending Office
)
and Clause 16.1 (
Notices
) (as hereby amended) of the Principal Agreement shall apply to this Agreement as if the same were set out herein in full.
|
11. |
Entire agreement and amendment; effect on Principal Agreement
|
11.1 |
Except to the extent that the Principal Agreement is expressly amended or supplemented by this Agreement, all terms and conditions of the Principal Agreement remain in full force and effect. This Agreement is supplementary to and incorporated in the Principal Agreement, all terms and conditions whereof, including, but not limited to, provisions on payments, calculation of interest and Events of Default, shall apply to the performance and interpretation of this Agreement.
|
11.2 |
The Principal Agreement, the other Security Documents, and this Agreement represent the entire agreement among the parties hereto with respect to the subject matter hereof and supersede any prior expressions of intent or understanding with respect to this transaction and may be amended only by an instrument in writing executed by the parties to be bound or burdened thereby.
|
12.1 |
This Agreement
and any non-contractual obligations arising out or in connection with it
shall be governed by and construed in accordance with English law and the provisions of Clause 17
(
Law and Jurisdiction
)
of the Principal Agreement shall apply mutatis mutandis to this Agreement as if the same were set out herein in full.
|
12.2 |
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
|
SIGNED by
|
)
|
||
Mr. Stavros Gyftakis
|
)
|
||
for and on behalf of
|
)
|
||
SQUIRE OCEAN NAVIGATION CO
.
|
)
|
/s/ Stavros Gyftakis | |
of Liberia, in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ Panagiota Sdrolia | |
Name:
|
Panagiota Sdrolia
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
Piraeus, Greece
|
||
Occupation:
|
Attorney-at-law
|
SIGNED by
|
)
|
||
Mr. Stavros Gyftakis
|
)
|
||
for and on behalf of
|
)
|
||
LEADER SHIPPING CO
.
|
)
|
/s/ Stavros Gyftakis | |
of Marshall Islands, in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ Panagiota Sdrolia | |
Name:
|
Panagiota Sdrolia
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
Piraeus, Greece
|
||
Occupation:
|
Attorney-at-law
|
SIGNED by
|
)
|
||
Mr. Konstantinos Flokos
|
)
|
/s/ Konstantinos Flokos | |
and Mrs. Chrysanthi Papathanasopoulou
|
)
|
Attorney-in-fact
|
|
for and on behalf of
|
)
|
||
ALPHA BANK A.E.
|
)
|
||
in the presence of:
|
)
|
/s/ Chrysanthi Papathanasopoulou | |
Attorney-in-fact
|
Witness:
|
/s/ Panagiota Sdrolia | |
Name:
|
Panagiota Sdrolia
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
Piraeus, Greece
|
||
Occupation:
|
Attorney-at-law
|
Clause
|
Page
|
|
1
|
Interpretation
|
1
|
2
|
Release of Security
|
2
|
3
|
Reassignment of Assigned Property
|
2
|
4
|
Further Documents
|
2
|
5
|
Third party rights
|
3
|
6
|
Governing Law and Jurisdiction
|
3
|
Schedule 1 Form of Notice of Reassignment of Insurances
|
4
|
Execution Page
|
5
|
(1) |
NATIXIS
, a "
societe anonyme
", located at 30, Avenue Pierre Mendes-France, F-75013 Paris, France with a share capital of 5,019,319,328, registered in Paris, France under number 542044524 as lender (the "
Lender
");
|
(2) |
CHAMPION OCEAN NAVIGATION CO.
, a corporation incorporated in the Republic of Liberia having its registered office at 80 Broad Street, Monrovia, Liberia (the "
Borrower
");
|
(3) |
SEANERGY MARITIME HOLDINGS CORP
., a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands as guarantor (the "
Guarantor
");
|
(4) |
V SHIPS LIMITED
, a corporation organised and existing under the laws of the Republic of Cyprus whose registered office is at Zinas Kanther, 16-18, Agia Triada, 3035 Limassol, Cyprus (the "
Approved
Technical
Manager
"); and
|
(5) |
FIDELITY MARINE INC.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands (the "
Approved
Commercial
Manager
" and together with the Approved Technical Manager, the "
Approved Managers
" and each an "
Approved Manager
").
|
(A) |
By the Facility Agreement, the Lender made available to the Borrower a facility of (originally) US$39,412,000.
|
(B) |
Under the Facility Agreement, the Guarantor guaranteed the obligations of the Borrower under the Finance Documents.
|
(C) |
As security for the Secured Liabilities, the Transaction Obligors entered into the Security Documents
|
(D) |
In consideration of the discharge by the Borrower of its obligations to the Lender under the Finance Documents, the Lender has agreed to execute this Deed.
|
1 |
INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
2 |
RELEASE OF SECURITY
|
2.1 |
Release
|
2.2 |
Release of obligations
|
3 |
REASSIGNMENT OF ASSIGNED PROPERTY
|
3.1 |
Reassignment
|
(a) |
to the Borrower, all rights and interests of every kind which the Lender now has to, in or in connection with the Secured Assets (as defined in the General Assignment);
|
(b) |
to the Borrower, all rights and interests, of every kind which the Lender now has to, in or in connection with the Mortgage; and
|
(c) |
to each Approved Manager, all rights and interest of every kind which the Lender now has to, in or in connection with the relevant Manager's Undertaking.
|
4 |
FURTHER DOCUMENTS
|
4.1 |
Delivery of further documents
|
(a) |
deliver to the Borrower:
|
(i) |
a copy of a Certificate of Ownership and Encumbrances evidencing that the that the Mortgage has been discharged; and
|
(ii) |
an executed notice of reassignment of Insurances in the form set out in Schedule 1 (
Form of Notice of Reassignment
);
|
(b) |
deliver to each Approved Manager an executed notice of reassignment of Insurances in the form set out in Schedule 1 (
Form of Notice of Reassignment
).
|
5 |
THIRD PARTY RIGHTS
|
6 |
GOVERNING LAW AND JURISDICTION
|
(a) |
This Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
(b) |
The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Deed.
|
EXECUTED AS A DEED
|
)
|
||
by
NATIXIS
|
)
|
||
acting by Alice Lightfoot
|
)
|
/s/ Alice Lightfoot
|
|
expressly authorised in accordance
|
)
|
Attorney-in-Fact
|
|
with the laws of France
|
)
|
||
being an attorney-in-fact
|
)
|
||
in the presence of:
|
)
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
Clause
|
Page
|
|
1
|
Interpretation
|
2
|
2
|
Release of Security
|
2
|
3
|
Reassignment of Assigned Property
|
3
|
4
|
Further Documents
|
3
|
5
|
Confirmation
|
4
|
6
|
Course of Dealing
|
4
|
7
|
Third party rights
|
4
|
8
|
Governing Law and Jurisdiction
|
4
|
Schedule 1 The Released Assets
|
4
|
Schedule 2
|
5
|
Part A Form of Notice of Reassignment Notice of Reassignment of Insurances
|
5
|
Execution
|
10
|
(1) |
JELCO DELTA HOLDING CORP.
, a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands as lender (the "
Lender
")
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.,
a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands as borrower (the "
Borrower
")
|
(3) |
KNIGHT OCEAN NAVIGATION CO.
,
a corporation incorporated and existing under the laws of the Republic of Liberia having its registered office at 80 Broad street, Monrovia, Liberia, as guarantor (the "
Guarantor
")
|
(A) |
By the Facility Agreement the Lender made available to the Borrower a facility of (originally) up to US$12,800,000.
|
(B) |
By a guarantee dated
28 November 2016
and made between (i) Lord Ocean Navigation Co. as additional guarantor (the "
Released Guarantor
") and (ii) the Lender, the Released Guarantor guaranteed the obligations of the Borrower under the Facility Agreement and the other Finance Documents.
|
(C) |
As security for the Secured Liabilities, the Borrower, the Guarantor and the Released Guarantor entered into the Finance Documents.
|
(D) |
It has been agreed that certain assets assigned, mortgaged, pledged or charged in favour of the Lender and the obligations and liabilities of the Released Guarantor under the Guarantee and the other Finance Documents creating a Security Interest over any of the Released Assets shall be released, subject to the terms of this Deed.
|
1 |
INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
2 |
RELEASE OF SECURITY
|
2.1 |
Release
|
2.2 |
Release of obligations
|
3 |
REASSIGNMENT OF ASSIGNED PROPERTY
|
3.1 |
Reassignment
|
4 |
FURTHER DOCUMENTS
|
4.1 |
Delivery of further documents
|
(a) |
evidence that the Mortgage has been discharged; and
|
(b) |
an executed notice of reassignment of Insurances in the form set out in Part A of Schedule 2 (
Form of Notice of Reassignment
);
|
5 |
CONFIRMATION
|
6 |
COURSE OF DEALING
|
7 |
THIRD PARTY RIGHTS
|
8 |
GOVERNING LAW AND JURISDICTION
|
(a) |
This Deed and any non-contractual obligations arising out of or in connection with it are governed by English law hereof.
|
(b) |
The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Deed.
|
EXECUTED AS A DEED
by
JELCO DELTA HOLDING CORP.
acting by illegible
being an attorney-in-fact
expressly authorised in accordance
with the laws of the Republic of The Marshall Islands
in the presence of:
Witness' signature:
Witness' name: Maria Moschopoulou
Witness' address: illegible
|
)
)
)
)
)
)
)
)
)
)
|
/s/ illegible
/s/ Maria Moschopoulou
|
EXECUTED AS A DEED
by
SEANERGY MARITIME HOLDINGS CORP.
acting by Stamatios Tsantanis
being an attorney-in-fact
expressly authorised in
accordance with the laws of
the Republic of The Marshall Islands
in the presence of:
Witness' signature:
Witness' name: Maria Moschopoulou
Witness' address: illegible
|
)
)
)
)
)
)
)
)
)
)
)
)
|
/s/ Stamatios Tsantanis
/s/ Maria Moschopoulou
|
EXECUTED AS A DEED
by
KNIGHT OCEAN NAVIGATION CO.
acting by Stamatios Tsantanis
being an attorney-in-fact
expressly authorised in
accordance with the laws of
the Republic of Liberia
in the presence of:
Witness' signature:
Witness' name: Maria Moschopoulou
Witness' address: illegible
|
)
)
)
)
)
)
)
)
)
)
)
)
|
/s/ Stamatios Tsantanis
/s/ Maria Moschopoulou
|
Clause
|
Page
|
|
1
|
Interpretation
|
1
|
2
|
Release of Security
|
2
|
3
|
Reassignment of Assigned Property
|
3
|
4
|
Further Documents
|
3
|
5
|
Third party rights
|
4
|
6
|
Governing Law and Jurisdiction
|
4
|
Schedule 1 Lenders
|
5
|
Schedule 2 The Released Assets
|
6
|
Schedule 3
|
7
|
Part A Form of Notice of Reassignment Notice of Reassignment of Insurances
|
7
|
Part B Form of Notice of Reassignment Notice of Reassignment of Insurances
|
8
|
Part C Form of Notice of Reassignment Notice of Reassignment of Insurances
|
9
|
Execution
|
10
|
(1) |
NORTHERN SHIPPING FUND III LP
,
a limited partnership formed in Delaware, United States of America, acting through its office at One Stamford Landing, Suite 212, 62 Southfield Avenue, Stamford, CT 06902, U.S.A.
as agent (the "
Agent
")
|
(2) |
NORTHERN SHIPPING FUND III LP
,
a limited partnership formed in Delaware, United States of America, acting through its office at One Stamford Landing, Suite 212, 62 Southfield Avenue, Stamford, CT 06902, U.S.A.
as security trustee (the "
Security Trustee
")
|
(3) |
THE ENTITIES LISTED IN SCHEDULE 1
as lenders (the "
Lenders
")
|
(4) |
KNIGHT OCEAN NAVIGATION CO.
,
a corporation incorporated and existing under the laws of the Republic of Liberia having its registered office at 80 Broad street, Monrovia, Liberia, as borrower ("
Knight
")
|
(5) |
EMPEROR HOLDING LTD.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands as shareholder (the "
Shareholder
")
|
(6) |
V. SHIPS LIMITED
, a company incorporated in Cyprus acting through its office is at Zinas Kanther, 16-18, Agia Triada, 3035 Limassol, Cyprus as approved technical manager (the "
Approved Technical Manager
")
|
(7) |
FIDELITY MARINE INC.,
a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands as approved commercial manager (the "
Approved Commercial Manager
" and together with the Approved Technical Manager, the "
Approved Managers
")
|
(A) |
By the Facility Agreement the Lenders made available to Knight and Lord Ocean Navigation Co. (together, the "
Borrowers
") a facility of (originally) up to US$32,000,000.
|
(B) |
As security for the Secured Liabilities, the Borrowers, the Shareholder and the Approved Managers entered into the Finance Documents.
|
(C) |
The Borrowers have, on the date of this Deed, repaid the Loan in full to the Lenders.
|
(D) |
This Deed sets out the terms and conditions on which the Creditor Parties agree, at the request of Knight and the Security Parties, to the release of the Security Interests and certain other obligations created by the Finance Documents.
|
1 |
INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
2 |
RELEASE OF SECURITY
|
2.1 |
Release
|
2.2 |
Release of obligations
|
(a) |
Knight from all its obligations and liabilities under the Facility Agreement and all other Finance Documents (other than (i) the Account and the Pledged Rights in respect of the German Law Document and (ii) the Deposit Account and the Collateral in respect of the NY Law Document);
|
(b) |
the Shareholder from all its obligations and undertakings under the Shares Security; and
|
(c) |
each Approved Manager for all its obligations and undertaking under each Finance Document to which each is a party which creates a Security Interest.
|
2.3 |
Release of German Law Document
|
2.4 |
Release of obligations under the German Law Document
|
2.5 |
Release of obligations under the NY Law Document
|
(a) |
Knight from any and all obligations under or in connection with the NY Law Document and in accordance with section 11(b) thereof, terminates the right of the pledge contained therein; and
|
(b) |
its Security Interest in deposit account number 1502525391 and hereby terminates the deposit account control agreement made among Knight, the Security Trustee and Signature Bank.
|
3 |
REASSIGNMENT OF ASSIGNED PROPERTY
|
3.1 |
Reassignment
|
(a) |
to Knight, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by Knight;
|
(b) |
to the Shareholder, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Shareholder;
|
(c) |
to the Approved Technical Manager, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Approved Technical Manager; and
|
(d) |
to the Approved Commercial Manager, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Approved Commercial Manager.
|
4 |
FURTHER DOCUMENTS
|
4.1 |
Delivery of further documents
|
(a) |
deliver to Knight:
|
(i) |
evidence that the Mortgage has been discharged; and
|
(ii) |
an executed notice of reassignment of Insurances in the form set out in Part A of Schedule 2 (
Form of Notice of Reassignment
);
|
(b) |
to the Approved Technical Manager, an executed notice of reassignment of Insurances in the form set out in Part B of Schedule 2 (
Form of Notice of Reassignment
);
|
(c) |
to the Approved Commercial Manager, an executed notice of reassignment of Insurances in the form set out in Part C of Schedule 2 (
Form of Notice of Reassignment
); and
|
(d) |
deliver to the Shareholder each document delivered to the Security Trustee pursuant to the Shares Security.
|
5 |
THIRD PARTY RIGHTS
|
6 |
GOVERNING LAW AND JURISDICTION
|
(a) |
This Deed (other than Clauses 2.3, 2.4 and 2.5) and any non-contractual obligations arising out of or in connection with it are governed by English law, Clauses 2.3 and 2.4 hereof and any non–contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with German law and Clause 2.5 hereof and any non–contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with New York law.
|
(b) |
The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Deed.
|
Lender
|
Lending Office
|
Northern Shipping Fund III LP
|
100 First Stamford Place
6
th
Floor, Stamford
CT 06902
U.S.A.
Attn: Sean Durkin
Fax No: +1 (203) 487 3435 Email: sd@northernshippingfunds.com |
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Kelina Kantzou
|
)
|
/s/ Kelina Kantzou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Kelina Kantzou
|
)
|
/s/ Kelina Kantzou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Kelina Kantzou
|
)
|
/s/ Kelina Kantzou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
Clause
|
Page
|
|
1
|
Interpretation
|
1
|
2
|
Release of Security
|
2
|
3
|
Reassignment of Assigned Property
|
3
|
4
|
Further Documents
|
3
|
5
|
Confirmation
|
3
|
6
|
Course of Dealing
|
4
|
7
|
Third party rights
|
4
|
8
|
Governing Law and Jurisdiction
|
4
|
Schedule 1 Lenders
|
5
|
Schedule 2 The Released Assets
|
6
|
Schedule 3
|
7
|
Part A Form of Notice of Reassignment Notice of Reassignment of Insurances
|
7
|
Part B Form of Notice of Reassignment Notice of Reassignment of Insurances
|
8
|
Part C Form of Notice of Reassignment Notice of Reassignment of Insurances
|
9
|
Execution
|
10
|
(1) |
NORTHERN SHIPPING FUND III LP
,
a limited partnership formed in Delaware, United States of America, acting through its office at One Stamford Landing, Suite 212, 62 Southfield Avenue, Stamford, CT 06902, U.S.A.
as agent (the "
Agent
")
|
(2) |
NORTHERN SHIPPING FUND III LP
,
a limited partnership formed in Delaware, United States of America, acting through its office at One Stamford Landing, Suite 212, 62 Southfield Avenue, Stamford, CT 06902, U.S.A.
as security trustee (the "
Security Trustee
")
|
(3) |
THE ENTITIES LISTED IN SCHEDULE 1
as lenders (the "
Lenders
")
|
(4) |
KNIGHT OCEAN NAVIGATION CO.
,
a corporation incorporated and existing under the laws of the Republic of Liberia having its registered office at 80 Broad street, Monrovia, Liberia, as borrower (the "
Borrower
")
|
(5) |
EMPEROR HOLDING LTD.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands as shareholder (the "
Shareholder
")
|
(6) |
V. SHIPS LIMITED
, a company incorporated in Cyprus acting through its office is at Zinas Kanther, 16-18, Agia Triada, 3035 Limassol, Cyprus as approved technical manager (the "
Approved Technical Manager
")
|
(7) |
FIDELITY MARINE INC.,
a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands as approved commercial manager (the "
Approved Commercial Manager
" and together with the Approved Technical Manager, the "
Approved Managers
")
|
(A) |
By the Facility Agreement the Lenders made available to the Borrower and Lord Ocean Navigation Co. (the "
Released Borrower
" and together with the Borrower, the "
Borrowers
") a facility of (originally) up to US$32,000,000.
|
(B) |
As security for the Secured Liabilities, the Borrowers, the Shareholder and the Approved Managers entered into the Finance Documents.
|
(C) |
It has been agreed that certain assets assigned, mortgaged, pledged or charged in favour of the Security Trustee, the obligations and liabilities of the Released Borrower under the Finance Documents and the obligations and liabilities of the Shareholder and each Approved Manager under each Finance Documents to which is a party creating a Security Interest over any of the Released Asset, shall be released, subject to the terms of this Deed.
|
1 |
INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
2 |
RELEASE OF SECURITY
|
2.1 |
Release
|
2.2 |
Release of obligations
|
(a) |
the Released Borrower from all its obligations and liabilities under the Facility Agreement and all other Finance Documents (other than (i) the Account and the Pledged Rights in respect of the German Law Document and (ii) the Deposit Account and the Collateral in respect of the NY Law Document);
|
(b) |
the Shareholder from all its obligations and undertakings under the Shares Security; and
|
(c) |
each Approved Manager for all its obligations and undertaking under each Finance Document to which each is a party which creates a Security Interest in relation to any of the Released Assets.
|
2.3 |
Release of German Law Document
|
2.4 |
Release of obligations under the German Law Document
|
2.5 |
Release of obligations under the NY Law Document
|
(a) |
the Released Borrower from any and all obligations under or in connection with the NY Law Document and in accordance with section 11(b) thereof, terminates the right of the pledge contained therein; and
|
(b) |
its Security Interest in deposit account number 1502525375 and hereby terminates the deposit account control agreement made among the Released Borrower, the Security Trustee and Signature Bank.
|
3 |
REASSIGNMENT OF ASSIGNED PROPERTY
|
3.1 |
Reassignment
|
(a) |
to the Released Borrower, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Released Borrower;
|
(b) |
to the Shareholder, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Shareholder;
|
(c) |
to the Approved Technical Manager, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Approved Technical Manager; and
|
(d) |
to the Approved Commercial Manager, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Approved Commercial Manager.
|
4 |
FURTHER DOCUMENTS
|
4.1 |
Delivery of further documents
|
(a) |
deliver to the Released Borrower:
|
(i) |
evidence that the Mortgage has been discharged; and
|
(ii) |
an executed notice of reassignment of Insurances in the form set out in Part A of Schedule 2 (
Form of Notice of Reassignment
);
|
(b) |
to the Approved Technical Manager, an executed notice of reassignment of Insurances in the form set out in Part B of Schedule 2 (
Form of Notice of Reassignment
);
|
(c) |
to the Approved Commercial Manager, an executed notice of reassignment of Insurances in the form set out in Part C of Schedule 2 (
Form of Notice of Reassignment
); and
|
(d) |
deliver to the Shareholder each document delivered to the Security Trustee pursuant to the Shares Security.
|
5 |
CONFIRMATION
|
6 |
COURSE OF DEALING
|
7 |
THIRD PARTY RIGHTS
|
8 |
GOVERNING LAW AND JURISDICTION
|
(a) |
This Deed (other than Clauses 2.3, 2.4 and 2.5) and any non-contractual obligations arising out of or in connection with it are governed by English law, Clauses 2.3 and 2.4 hereof and any non–contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with German law and Clause 2.5 hereof and any non–contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with New York law.
|
(b) |
The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Deed.
|
Lender
|
Lending Office
|
Northern Shipping Fund III LP
|
100 First Stamford Place
6
th
Floor, Stamford
CT 06902
U.S.A.
Attn: Sean Durkin
Fax No: +1 (203) 487 3435 Email: sd@northernshippingfunds.com |
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Ourania Todoulou
|
)
|
/s/ Ourania Todoulou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Ourania Todoulou
|
)
|
/s/ Ourania Todoulou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Ourania Todoulou
|
)
|
/s/ Ourania Todoulou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
KNIGHT OCEAN NAVIGATION CO.
|
)
|
||
acting by Stamatios Tsantanis
|
)
|
/s/ Stamatios Tsantanis
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in
|
)
|
||
accordance with the laws of
|
)
|
||
the Republic of Liberia
|
|||
in the presence of:
|
)
)
|
||
Witness' signature: /s/ Maria Moschopoulou
|
)
|
||
Witness' name: Maria Moschopoulou
|
)
|
||
Witness' address:
|
154 Vouliagmenis Ave
|
)
|
|
16674 Glyfada
Athens Greece
|
EXECUTED AS A DEED
|
)
|
||
by
EMPEROR HOLDING LTD.
|
)
|
||
acting by Stamatios Tsantanis
|
)
|
/s/ Stamatios Tsantanis
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in
|
)
|
||
accordance with the laws of
|
)
|
||
the Republic of The Marshall Islands
|
|||
in the presence of:
|
)
)
|
||
Witness' signature: /s/ Maria Moschopoulou
|
)
|
||
Witness' name: Maria Moschopoulou
|
)
|
||
Witness' address:
|
154 Vouliagmenis Ave
|
)
|
|
16674 Glyfada
Athens Greece
|
EXECUTED AS A DEED
|
)
|
||
by
V. SHIPS LIMITED
|
)
|
||
acting by
|
)
|
/s/ V. Ships
|
|
being a
|
)
|
||
expressly authorised in
|
)
|
||
accordance with the laws of
|
)
|
||
the Cyprus
|
|||
in the presence of:
|
)
)
|
||
Witness' signature: /s/ Angela Paschali
|
)
|
||
Witness' name: Angela Paschali
|
)
|
||
Witness' address:
|
13 Omonia Avenue
|
)
|
|
3052 Limassol
|
EXECUTED AS A DEED
|
)
|
||
by
FIDELITY MARINE INC.
|
)
|
||
acting by Nikolaos Frantzeskakis
|
)
|
/s/ Nikolaos Frantzeskakis
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in
|
)
|
||
accordance with the laws of
|
)
|
||
the Republic of The Marshall Islands
|
|||
in the presence of:
|
)
)
|
||
Witness' signature: /s/ Maria Moschopoulou
|
)
|
||
Witness' name: Maria Moschopoulou
|
)
|
||
Witness' address:
|
154 Vouliagmenis Ave
|
)
|
|
16674 Glyfada
Athens Greece
|
Clause
|
Page
|
|
1
|
Interpretation
|
1
|
2
|
Release of Security
|
2
|
3
|
Reassignment of Assigned Property
|
3
|
4
|
Further Documents
|
3
|
5
|
Third party rights
|
4
|
6
|
Governing Law and Jurisdiction
|
4
|
Schedule 1 Lenders
|
5
|
Schedule 2 The Released Assets
|
6
|
Schedule 3
|
7
|
Part A Form of Notice of Reassignment Notice of Reassignment of Insurances
|
7
|
Part B Form of Notice of Reassignment Notice of Reassignment of Insurances
|
8
|
Part C Form of Notice of Reassignment Notice of Reassignment of Insurances
|
9
|
Execution
|
10
|
(1) |
NORTHERN SHIPPING FUND III LP
,
a limited partnership formed in Delaware, United States of America, acting through its office at One Stamford Landing, Suite 212, 62 Southfield Avenue, Stamford, CT 06902, U.S.A.
as agent (the "
Agent
")
|
(2) |
NORTHERN SHIPPING FUND III LP
,
a limited partnership formed in Delaware, United States of America, acting through its office at One Stamford Landing, Suite 212, 62 Southfield Avenue, Stamford, CT 06902, U.S.A.
as security trustee (the "
Security Trustee
")
|
(3) |
THE ENTITIES LISTED IN SCHEDULE 1
as lenders (the "
Lenders
")
|
(4) |
KNIGHT OCEAN NAVIGATION CO.
,
a corporation incorporated and existing under the laws of the Republic of Liberia having its registered office at 80 Broad street, Monrovia, Liberia, as borrower ("
Knight
")
|
(5) |
EMPEROR HOLDING LTD.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands as shareholder (the "
Shareholder
")
|
(6) |
V. SHIPS LIMITED
, a company incorporated in Cyprus acting through its office is at Zinas Kanther, 16-18, Agia Triada, 3035 Limassol, Cyprus as approved technical manager (the "
Approved Technical Manager
")
|
(7) |
FIDELITY MARINE INC.,
a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands as approved commercial manager (the "
Approved Commercial Manager
" and together with the Approved Technical Manager, the "
Approved Managers
")
|
(A) |
By the Facility Agreement the Lenders made available to Knight and Lord Ocean Navigation Co. (together, the "
Borrowers
") a facility of (originally) up to US$32,000,000.
|
(B) |
As security for the Secured Liabilities, the Borrowers, the Shareholder and the Approved Managers entered into the Finance Documents.
|
(C) |
The Borrowers have, on the date of this Deed, repaid the Loan in full to the Lenders.
|
(D) |
This Deed sets out the terms and conditions on which the Creditor Parties agree, at the request of Knight and the Security Parties, to the release of the Security Interests and certain other obligations created by the Finance Documents.
|
1 |
INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
2 |
RELEASE OF SECURITY
|
2.1 |
Release
|
2.2 |
Release of obligations
|
(a) |
Knight from all its obligations and liabilities under the Facility Agreement and all other Finance Documents (other than (i) the Account and the Pledged Rights in respect of the German Law Document and (ii) the Deposit Account and the Collateral in respect of the NY Law Document);
|
(b) |
the Shareholder from all its obligations and undertakings under the Shares Security; and
|
(c) |
each Approved Manager for all its obligations and undertaking under each Finance Document to which each is a party which creates a Security Interest.
|
2.3 |
Release of German Law Document
|
2.4 |
Release of obligations under the German Law Document
|
2.5 |
Release of obligations under the NY Law Document
|
(a) |
Knight from any and all obligations under or in connection with the NY Law Document and in accordance with section 11(b) thereof, terminates the right of the pledge contained therein; and
|
(b) |
its Security Interest in deposit account number 1502525391 and hereby terminates the deposit account control agreement made among Knight, the Security Trustee and Signature Bank.
|
3 |
REASSIGNMENT OF ASSIGNED PROPERTY
|
3.1 |
Reassignment
|
(a) |
to Knight, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by Knight;
|
(b) |
to the Shareholder, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Shareholder;
|
(c) |
to the Approved Technical Manager, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Approved Technical Manager; and
|
(d) |
to the Approved Commercial Manager, all rights and interests of every kind in any Released Assets assigned to any Creditor Party by the Approved Commercial Manager.
|
4 |
FURTHER DOCUMENTS
|
4.1 |
Delivery of further documents
|
(a) |
deliver to Knight:
|
(i) |
evidence that the Mortgage has been discharged; and
|
(ii) |
an executed notice of reassignment of Insurances in the form set out in Part A of Schedule 2 (
Form of Notice of Reassignment
);
|
(b) |
to the Approved Technical Manager, an executed notice of reassignment of Insurances in the form set out in Part B of Schedule 2 (
Form of Notice of Reassignment
);
|
(c) |
to the Approved Commercial Manager, an executed notice of reassignment of Insurances in the form set out in Part C of Schedule 2 (
Form of Notice of Reassignment
); and
|
(d) |
deliver to the Shareholder each document delivered to the Security Trustee pursuant to the Shares Security.
|
5 |
THIRD PARTY RIGHTS
|
6 |
GOVERNING LAW AND JURISDICTION
|
(a) |
This Deed (other than Clauses 2.3, 2.4 and 2.5) and any non-contractual obligations arising out of or in connection with it are governed by English law, Clauses 2.3 and 2.4 hereof and any non–contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with German law and Clause 2.5 hereof and any non–contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with New York law.
|
(b) |
The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Deed.
|
Lender
|
Lending Office
|
Northern Shipping Fund III LP
|
100 First Stamford Place
6
th
Floor, Stamford
CT 06902
U.S.A.
Attn: Sean Durkin
Fax No: +1 (203) 487 3435 Email: sd@northernshippingfunds.com |
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Kelina Kantzou
|
)
|
/s/ Kelina Kantzou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Kelina Kantzou
|
)
|
/s/ Kelina Kantzou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
EXECUTED AS A DEED
|
)
|
||
by
NORTHERN SHIPPING FUND III LP
|
)
|
||
acting by Kelina Kantzou
|
)
|
/s/ Kelina Kantzou
|
|
being an attorney-in-fact
|
)
|
||
expressly authorised in accordance
|
)
|
||
with the laws of the state of Delaware
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Emmanouil Pontikis
|
)
|
||
Witness' name: Emmanouil Pontikis
|
)
|
||
Witness' address:
|
Watson Farley & Williams
|
)
|
|
348 Syngrou Avenue
176 74 Kallithea
Athens – Greece
|
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 SECURED AGREEMENT
|
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 "
Lender
", which expression includes its successors and assigns).
|
(A) |
By a loan agreement dated 10 April 2018 (the "
Loan Agreement
") and made between (i) Seanergy Maritime Holdings Corp. as borrower (the "
Borrower
") and (i) the Lender as lender, it was agreed that the Lender would make available to the Borrower a loan facility of US$2,000,000 (the "
Loan
").
|
(B) |
The Guarantor is a wholly owned subsidiary of the Borrower and commercially benefits from the Loan as the Loan provides additional liquidity to the Borrower ensuring that it can meet its current obligations while retaining liquidity available to fund the working capital and other financial requirements of the Guarantor.
|
(C) |
It is a condition precedent to the Lender advancing the Loan to the Borrower under the Loan Agreement that the Guarantor shall execute and deliver to the Lender this Guarantee.
|
1 |
INTERPRETATION
|
1.1 |
Defined expressions
|
1.2 |
Construction of certain terms
|
(a) |
all amounts which have become due for payment by the Borrower under the Loan Agreement have been paid; and
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under the Loan Agreement.
|
1.3 |
Application of construction and interpretation provisions of Loan Agreement
|
2 |
GUARANTEE
|
2.1 |
Guarantee and indemnity
|
(a) |
guarantees the due payment of all amounts payable by the Borrower under or in connection with each of the Secured Agreements;
|
(b) |
undertakes to pay to the Lender, on the Lender's demand, any such amount which is not paid by the Borrower when payable; and
|
(c) |
fully indemnifies the Lender on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the Lender 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 Lender 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 Secured Agreements;
|
(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, any of the Secured Agreements;
|
(c) |
any release or loss (even though negligent) of any right created by any of the Secured Agreements;
|
(d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right; or
|
(e) |
any other Secured Agreement 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 Lender 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 Secured Agreement
|
8 |
SUBORDINATION
|
8.1 |
Subordination of rights of Guarantor
|
(a) |
claim, or in a bankruptcy of the Borrower prove for, any amount payable to the Guarantor by the Borrower, whether in respect of this Guarantee or any other transaction;
|
(b) |
claim to set-off any such amount against any amount payable by the Guarantor to the Borrower; or
|
(c) |
claim any subrogation or other right in respect of any Secure Agreement or any sum received or recovered by the Lender under a Secured Agreement.
|
9 |
ENFORCEMENT
|
9.1 |
No requirement to commence proceedings against Borrower
|
9.2 |
Conclusive evidence of certain matters
|
(a) |
any judgment or order of a court in England or the Marshall Islands, the State of New York, the United States or America or Greece in connection with the Loan Agreement or any other Secured Agreement; and
|
(b) |
any statement or admission of the Borrower in connection with the Loan Agreement or any other Secured Agreement,
|
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; or
|
(b) |
any matter which indicates that an Event of Default may have occurred,
|
11.7 |
Maintenance of status
|
11.8 |
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.
|
11.9 |
No merger etc.
|
12 |
JUDGMENTS
|
12.1 |
Judgments relating to a Secured Agreement
|
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 |
Guarantor bound by Loan Agreement
|
13.7 |
Applicability of provisions of Guarantee to other security interests
|
13.8 |
Applicability of provisions of Guarantee to other rights
|
13.9 |
Guarantor's approval of Loan Agreement
|
13.10 |
Third party rights
|
14 |
NOTICES
|
14.1 |
Notices to Guarantor
|
14.2 |
Application of certain provisions of Loan Agreement
|
14.3 |
Validity of demands
|
(a) |
on the date on which the amount to which it relates is payable by the Borrower under the Loan Agreement;
|
(b) |
at the same time as the service of a notice under clause 5.10 (events of default) of the Loan Agreement,
|
14.4 |
Notices to Lender
|
15 |
INVALIDITY OF A SECURED AGREEMENT
|
15.1 |
Invalidity of a Secured Agreement
|
(a) |
a Secured Agreement 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 Borrower, the introduction of any law or any other matter resulting in the Borrower being discharged from liability under a Secured Agreement, or a Secured Agreement ceasing to operate (for example, by interest ceasing to accrue);
|
15.2 |
Invalidity of Finance Documents
|
16 |
GOVERNING LAW AND JURISDICTION
|
16.1 |
English law
|
16.2 |
Exclusive English jurisdiction
|
16.3 |
Choice of forum for the exclusive benefit of the Lender
|
(a) |
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b) |
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
16.4 |
Process agent
|
16.5 |
Lender' rights unaffected
|
16.6 |
Meaning of "proceedings"
|
EXECUTED AND DELIVERED AS A DEED
|
)
|
|
by
EMPEROR HOLDING LTD.
|
)
|
|
acting by Stamatios Tsantanis
|
)
|
|
expressly authorised in accordance with the
|
)
|
/s/ Stamatios Tsantanis |
laws of the Republic of the Marshall Islands
|
)
|
|
by virtue of a power of attorney granted
|
)
|
|
by
EMPEROR HOLDING LTD.
|
)
|
|
on 10 April 2018
|
)
|
|
such execution being witnessed by
|
)
|
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 10 April 2018
|
)
|
|
such execution being witnessed by
|
)
|
Clause
|
Page
|
|
1
|
Purpose, Definitions and Construction of certain terms
|
2
|
2
|
The Loan
|
4
|
3
|
Interest
|
5
|
4
|
Repayment
|
5
|
5
|
Representations and Warranties
|
5
|
6
|
Events of Default
|
6
|
7
|
Application of Receipts
|
7
|
8
|
Notices
|
8
|
9
|
Amendments and Waivers
|
8
|
10
|
Process Agent
|
8
|
11
|
Governing Law and Jurisdiction
|
8
|
12
|
Miscellaneous
|
9
|
Execution Page
|
10
|
|
Schedule 1 Form of Drawdown Notice
|
11
|
|
Schedule 2 Condition Precedent Documents
|
12
|
(1) |
JELCO DELTA HOLDING CORP.
, a corporation organised under the laws of the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (the "
Lender
")
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, a corporation organised under the laws of the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (the "
Company
")
|
(A) |
The Company is currently in negotiations for the sale of one of the Ships, or for the refinancing of the existing indebtedness under the NSF Agreement secured by the Ships.
|
(B) |
The Company is the registered, legal and beneficial owner of Owner A and Owner B, owners of Ship A and Ship B respectively.
|
(C) |
The Company desires to borrow an aggregate principal amount of -$2,000,000 from the Lender to be used for short-term working capital purposes in a single advance.
|
(D) |
The Lender, which as of the date hereof is holding 41.6% of the total issued share capital of the Company, is willing to make available the Loan to the Company in accordance with the terms and conditions of this Loan Agreement.
|
1 |
PURPOSE, DEFINITIONS AND INTERPRETATION
|
1.1 |
Purpose
|
1.2 |
Definitions
|
(a) |
the Total Loss Date in relation to either Ship; and
|
(b) |
August 10, 2018;
|
(a) |
this Loan Agreement;
|
(b) |
the Emperor Guarantee;
|
(c) |
the Amending and Restating Agreement;
|
(d) |
the 28 November 2016 Loan Agreement;
|
(e) |
the 27 September 2017 Loan Agreement;
|
(f) |
the Notes; and
|
(g) |
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower or the Owner or Emperor 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 Loan Agreement, the 28 November 2016 Loan Agreement, the 27 September 2017 Loan Agreement, the Notes or any of the other documents referred to in this definition and, in the singular, means any of them;
|
(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 the Owner of that Ship;
|
(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 Owner of that Ship;
|
(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 Owner of that Ship 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;
|
1.3 |
Construction of certain terms
|
2 |
THE LOAN
|
2.1 |
Commitment to Lend
|
2.2 |
Conditions Precedent to Lend
|
(a) |
The documents and evidence described in Part A of Schedule 2 hereto on or prior to the date of the Amending and Restating Agreement;
|
(b) |
the Drawdown Notice in the form set out in
Schedule 1
on the same business day with the Drawdown Date; and
|
(c) |
the Guarantee duly executed by the Guarantor on the Drawdown Date.
|
3 |
INTEREST
|
3.1 |
Interest Period
|
3.2 |
Interest rate
|
3.3 |
Accrual and payment of interest
|
4 |
REPAYMENT
|
5 |
REPRESENTATIONS AND WARRANTIES
|
5.1 |
Organisation
|
5.2 |
Enforceability
|
5.3 |
No Conflict
|
6 |
EVENTS OF DEFAULT
|
6.1 |
Non-payment
|
6.2 |
Misrepresentation
|
6.3 |
Breach of Undertakings
|
6.4 |
Security
|
6.5 |
Insolvency
|
6.6 |
Insolvency proceedings
|
(a) |
the suspension of payments, winding-up, dissolution, administration, bankruptcy or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower or the Guarantor;
|
(b) |
a composition, compromise, assignment with any creditor of the Borrower or the Guarantor;
|
(c) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, or trustee or other similar officer in respect of the Borrower or the Guarantor or any of their respective assets; or any analogous procedure or step is taken in any jurisdiction.
|
6.7 |
Impossibility or illegality
|
6.8 |
Revocation or modification of authorisation
|
6.9 |
Material adverse change
|
6.10 |
Acceleration
|
(a) |
declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under this Loan Agreement are immediately due and payable, whereupon they shall become immediately due and payable; and/or
|
(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.
|
7 |
APPLICATION OF RECEIPTS
|
7.1 |
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;
|
(c) |
THIRDLY: in or towards payment pro rata of any principal 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 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 77.1(a), 7.1(b), 7.1(c) and 7.1(d); and
|
(f) |
SIXTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
7.2 |
Variation of order of application
|
7.3 |
Notice of variation of order of application
|
7.4 |
Appropriation rights overridden
|
8 |
NOTICES
|
9 |
AMENDMENTS AND WAIVERS
|
10 |
PROCESS AGENT
|
11 |
GOVERNING LAW AND JURISDICTION
|
12 |
MISCELLANEOUS
|
12.1 |
The headings of the clauses of this Loan Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Loan Agreement.
|
12.2 |
If any provision or part of a provision of this Loan Agreement or its application to either party, shall be, or be found by any authority of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall. not affect the other provisions or parts of such provisions of this Loan Agreement, all of which shall remain in full force and effect;
|
12.3 |
This Loan Agreement may be entered into on separate engrossments, each of which when so executed and delivered shall be an original but 'each engrossment shall together constitute one and the same instrument and shall take effect from the time of execution of the last engrossment. Immediate evidence that an engrossment has been executed may be provided by transmission of such engrossment by facsimile machine or by email with the original executed engrossment to be forthwith put in the mail.
|
12.4 |
A person who is not a party to this Loan Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 of the United Kingdom to enforce any term of this Loan Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
|
SIGNED
by
|
|
Alastair Macdonald
|
)
|
for and behalf of
|
)
/s/ Alastair Macdonald
|
JELCO DELTA HOLDING CORP.
|
)
|
in the presence of:
|
SIGNED
by
|
|
Stamatios Tsantanis
|
)
|
for and behalf of
|
)
/s/ Stamatios Tsantanis
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
in the presence of:
|
1 |
Copies of the certificate of incorporation and constitutional documents of the Borrower and the Guarantor and any company registration documents in respect of the Borrower (including, without limitation, any corporate register excerpts) required by the Lender.
|
2 |
Copies of resolutions of the directors of the Borrower and the Guarantor 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 Notice and other notices under this Loan Agreement.
|
3 |
The original of any power of attorney under which any Finance Document is executed on behalf of the Borrower and the Guarantor.
|
To:
|
SEANERGY MARITIME HOLDINGS CORP.
as Borrower
of Trust Company Complex, Ajeltake Road
Ajeltake Island, Majuro
MH96960, the Marshall Islands
|
From:
|
JELCO DELTA HOLDING CORP.
as Lender
Jardine House, 4th Floor,
33-35 Reid Street
P.O. Box HM 1431
Hamilton HM FX, Bermuda
|
11
August 2018
|
1.1 |
We hereby confirm our approval, consent and acceptance of the following with effect as of 10 August 2018:
|
(a) |
the Total Loss Date in relation to either Ship; and
|
(b) |
January 31, 2019;"
|
1.2 |
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 "Loan Agreement" as references to the Facility Agreement as amended and supplemented by this Supplemental Letter.
|
2 |
Governing law
|
Yours faithfully
|
||
/s/ illegible | ||
11 August 2018
|
||
for and on behalf of
Jelco Delta Holding Corp.
as Lender
|
||
We hereby acknowledge receipt of the above Supplemental Letter and confirm our agreement to the terms hereof.
|
||
/s/ Stamatios Tsantanis | ||
11 August 2018
for and on behalf of
Seanergy Maritime Holdings Corp.
as Borrower
|
Clause
|
Page
|
|
Section 1
|
Interpretation
|
2
|
1
|
Definitions and Interpretation
|
2
|
Section 2
|
The Facility
|
25
|
2
|
The Facility
|
25
|
3
|
Purpose
|
25
|
4
|
Conditions of Utilisation
|
26
|
Section 3
|
Utilisation
|
27
|
5
|
Utilisation
|
27
|
Section 4
|
Repayment, Prepayment, Cancellation and Put Option
|
29
|
6
|
Repayment
|
29
|
7
|
Prepayment and Cancellation
|
29
|
8
|
Put Option
|
31
|
Section 5
|
Costs of Utilisation
|
35
|
9
|
Interest
|
35
|
10
|
Interest Periods
|
35
|
11
|
Fees
|
36
|
Section 6
|
Additional Payment Obligations
|
37
|
12
|
Tax Gross Up and Indemnities
|
37
|
13
|
Increased Costs
|
41
|
14
|
Other Indemnities
|
43
|
15
|
Mitigation by the Finance Parties
|
46
|
16
|
Costs and Expenses
|
46
|
Section 7
|
Guarantee
|
48
|
17
|
Guarantee and Indemnity
|
48
|
Section 8
|
Representations, Undertakings and Events of Default
|
51
|
18
|
Representations
|
51
|
19
|
Information Undertakings
|
57
|
20
|
General Undertakings
|
61
|
21
|
Insurance Undertakings
|
68
|
22
|
Ship Undertakings
|
73
|
23
|
Valuations
|
79
|
24
|
Earnings Account and Application of Earnings
|
79
|
25
|
Events of Default
|
80
|
Section 9
|
Changes to Parties
|
86
|
26
|
Changes to the Lenders
|
86
|
27
|
Changes to the Transaction Obligors
|
91
|
Section 10
|
The Finance Parties
|
92
|
28
|
The Facility Agent
|
92
|
29
|
The Security Agent
|
103
|
30
|
Conduct of Business by the Finance Parties
|
118
|
31
|
Sharing among the Finance Parties
|
119
|
Section 11
|
Administration
|
121
|
32
|
Payment Mechanics
|
121
|
33
|
Set-Off
|
124
|
34
|
Bail-In
|
124
|
35
|
Notices
|
124
|
36
|
Calculations and Certificates
|
127
|
37
|
Partial Invalidity
|
127
|
38
|
Remedies and Waivers
|
127
|
39
|
Settlement or Discharge Conditional
|
127
|
40
|
Irrevocable Payment
|
127
|
41
|
Amendments and Waivers
|
128
|
42
|
Confidential Information
|
130
|
43
|
Confidentiality of Funding Rates
|
134
|
44
|
Counterparts
|
135
|
Section 12
|
Governing Law and Enforcement
|
136
|
45
|
Governing Law
|
136
|
46
|
Enforcement
|
136
|
47
|
Patriot Act Notice
|
136
|
Schedule 1 The Parties
|
138
|
Part A The Obligors
|
138
|
Part B The Original Lenders
|
139
|
Part C The Servicing Parties
|
140
|
Schedule 2 Conditions Precedent
|
141
|
Part A Conditions precedent to Utilisation Request
|
141
|
Part B Conditions precedent to Utilisation
|
143
|
Schedule 3 Requests
|
145
|
Utilisation Request
|
145
|
Schedule 4 Form of Transfer Certificate
|
147
|
Schedule 5 Form of Assignment Agreement
|
149
|
Schedule 6 Repayment Schedule
|
152
|
Schedule 7 Timetables
|
153
|
Execution Pages
|
154
|
(1) |
LORD OCEAN NAVIGATION CO.
, a corporation incorporated in the Republic of Liberia whose registered office is at 80 Broad Street, Monrovia, Liberia as borrower (the "
Borrower
")
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, MH96960, Majuro, Marshall Islands as guarantor (the "
Guarantor
")
|
(3) |
THE FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
The Parties
) as lenders (the "
Original Lenders
")
|
(4) |
WILMINGTON TRUST, NATIONAL ASSOCIATION
as agent of the other Finance Parties (the "
Facility Agent
")
|
(5) |
WILMINGTON TRUST, NATIONAL ASSOCIATION
as security agent for the Secured Parties (the "
Security Agent
")
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
Fidelity Marine;
|
(b) |
Seanergy Management; or
|
(c) |
any other person approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders as the commercial manager of the Ship.
|
(a) |
the amount of its participation in the outstanding Loan; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in the Loan 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) |
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 42 (
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 with a Transaction Obligor and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
(ii) |
any Funding Rate.
|
(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 (acting on the instructions of the Majority Lenders), 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 the Borrower or the Security Agent in the event of requisition of the 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 the 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 the Borrower in relation to general average contribution; and
|
(b) |
if and whenever the 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 the Ship.
|
(a) |
an account in the name of the Borrower with the Account Bank designated "
Lord Ocean Navigation Co.
– USD Earnings Account"; or
|
(b) |
any other account in the name of the 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) |
any release, emission, spill or discharge of Environmentally Sensitive Material whether within a Ship or from a Ship into any other vessel or into or upon the air, sea, land or soils (including the seabed) or surface water; 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 the Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Ship and/or any Transaction Obligor and/or any operator or manager of the 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 the Ship and in connection with which the Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
(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 Utilisation Request;
|
(c) |
any Security Document;
|
(d) |
any Fee Letter;
|
(e) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
(f) |
any other document designated as such by the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrower.
|
(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) |
for the purposes of Clause 14.2 (
Other indemnities
), each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate;
|
(b) |
for the purposes of Clause 14.3 (
Indemnity to the Facility Agent
), the Facility Agent, each Affiliate of the Facility Agent and each director, officer and employee; and
|
(c) |
for the purposes of Clause 14.4 (
Indemnity to the Security Agent
), the Security Agent and every Receiver and Delegate, each Affiliate of the Security Agent, Receiver and Delegate and each director, officer and employee.
|
(a) |
all policies and contracts of insurance, including entries of the Ship in any protection and indemnity or war risks association, effected in relation to the Ship, the Earnings or otherwise in relation to the 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) |
any Original Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 26 (
Changes to the Lenders
),
|
(a) |
if the Loan has not yet been advanced, 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 30 days previously;
|
(b) |
by an Approved Valuer (one of which is appointed by the Facility Agent (acting on the instructions of the Majority Lenders) and the other which is appointed by the Borrower);
|
(c) |
with or without physical inspection of the Ship or vessel (as the Facility Agent (acting on the instructions of the Majority Lenders) 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.
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Obligor or 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) |
which is a time, voyage or consecutive voyage charter;
|
(b) |
the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 12 months plus a redelivery allowance of not more than 30 days;
|
(c) |
which is entered into on
bona fide
arm's length terms at the time at which the Ship is fixed; and
|
(d) |
in relation to which not more than two months' hire is payable in advance,
|
(a) |
any Financial Indebtedness incurred under the Finance Documents;
|
(b) |
until the Utilisation Date, the Existing Indebtedness; and
|
(c) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents in a manner satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders).
|
(a) |
Security created by the Finance Documents;
|
(b) |
until the Utilisation Date, the Existing Security;
|
(c) |
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;
|
(d) |
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice;
|
(e) |
liens for salvage;
|
(f) |
liens for master's disbursements incurred in the ordinary course of trading;
|
(g) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Ship and not as a result of any default or omission by the 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 22.15 (
Restrictions on chartering, appointment of managers etc.
);
|
(h) |
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; and
|
(i) |
any Security created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where the Borrower is actively prosecuting or defending such proceedings or arbitration in good faith.
|
(a) |
in relation to the exercise of the Year-5 Put Option, the Year-5 Purchase Price; and
|
(b) |
in relation to the exercise of the Year-7 Put Option, the Year-7 Purchase Price; and
|
(a) |
its Original Jurisdiction;
|
(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 the 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 the 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 European Union, the member states 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) |
the Shares Security;
|
(b) |
the Mortgage;
|
(c) |
the General Assignment;
|
(d) |
any Charter Assignment;
|
(e) |
the Account Security;
|
(f) |
any Manager's Undertaking;
|
(g) |
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or
|
(h) |
any other document designated as such by the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrower.
|
(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 (acting on the instructions of the Majority Lenders) or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a) |
if the Extension Option is not exercised, the Initial Termination Date; and
|
(b) |
if the Extension Option is exercised, the Extended Termination Date.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Ship; or
|
(b) |
any Requisition of the Ship unless the Ship is returned to the full control of the Borrower within 90 days of such Requisition (or such later period agreed by the Facility Agent acting on the instructions of the Majority Lenders).
|
(a) |
in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown, the date when the Ship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the 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 Borrower with the Ship's insurers in which the insurers agree to treat the 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 Majority Lenders that the event constituting the total loss occurred.
|
(a) |
a Finance Document;
|
(b) |
any Charter; or
|
(c) |
any other document designated as such by the Facility Agent and the 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
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
(a) |
the completion of the third special survey and dry docking of the Ship upon the Ship reaching an age of 15 years;
|
(b) |
the installation of a ballast water treatment system
provided that
such condition will not apply if (i) the laws and regulations providing for the installation of ballast water treatment systems on ocean-going vessels have been repealed or (ii) the entry into force of such laws and regulation has been postponed at the time of the exercise of the Year-7 Put Option until not earlier than the date falling 5 years after the Termination Date; and
|
(c) |
the application of a minimum 60-months hull paint system on the Ship during such dry docking,
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "
Account Bank
", 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, fax or telex;
|
(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) |
a "
group of Lenders
" includes all the Lenders;
|
(viii) |
"
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;
|
(ix) |
"
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 States of America, the United Nations or its Security Council;
|
(x) |
"
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;
|
(xi) |
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);
|
(xii) |
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;
|
(xiii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiv) |
a time of day is a reference to New York time unless specified to the contrary;
|
(xv) |
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;
|
(xvi) |
words denoting the singular number shall include the plural and vice versa; and
|
(xvii) |
"
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 the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where Clause 41.2 (
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 41.3 (
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 Receiver, Delegate, Affiliate or for the purpose of Clause 14.2 (
Other indemnities
), Clause 14.3 (
Indemnity to the Facility Agent
) and Clause 14.4 (
Indemnity to the Security Agent
), any Indemnified Person, or any other person described in paragraph (b) of Clause 28.10 (
Exclusion of liability
), or paragraph (b) of Clause 29.11 (
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.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
3.3 |
Proceeds of Loan
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
on the date of the Utilisation Request and on the proposed Utilisation Date and before the Loan is advanced:
|
(i) |
no Default is continuing or would result from the proposed Loan; and
|
(ii) |
the Repeating Representations to be made by each Transaction Obligor are true;
|
(b) |
the Facility Agent has received on or before the Utilisation Date, or the Majority Lenders are satisfied they will receive when the Loan 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 (acting on the instructions of the Majority Lenders).
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Facility Agent shall send to the Lenders all of the conditions precedent referred to in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2 (
Further conditions precedent
) which it has received.
|
(b) |
Each Lender shall promptly confirm to the Facility Agent in writing that it is 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
).
|
(c) |
The Facility Agent shall notify the Borrower and the Lenders promptly upon receipt of those confirmations referred to in paragraph (b) above from all of the Lenders.
|
(d) |
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 (c) 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 Utilisation Request
|
(a) |
The Borrower may utilise the Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b) |
The Borrower may not deliver more than one Utilisation Request.
|
5.2 |
Completion of Utilisation Request
|
(a) |
The 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
); and
|
(iii) |
the proposed Interest Period complies with Clause 10 (
Interest Periods
).
|
(b) |
Only one advance may be requested in the Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in the Utilisation Request must be dollars.
|
(b) |
The amount of the Loan must be an amount which is not more $24,500,000.
|
(c) |
The amount of the Loan 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 the Loan available by the Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender's participation in the Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before advancing the Loan.
|
(c) |
Subject to receiving a Utilisation Request, the Facility Agent shall notify each Lender of the amount of the Loan and the amount of its participation in the Loan by the Specified Time.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Retentions and payment to third parties
|
(a) |
to deduct from the proceeds of the Loan 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 the Utilisation Date, to pay to, or for the account of, the Borrower the amounts which the Facility Agent receives from the Lenders in respect of the Loan. That payment shall be made:
|
(i) |
to the account which the Borrower specifies in the Utilisation Request; and
|
(ii) |
in like funds as the Facility Agent received from the Lenders in respect of the Loan.
|
5.7 |
Disbursement of Loan to third party
|
5.8 |
Prepositioning of funds
|
(a) |
the Lenders shall, prior to any such pre-positioning of funds, provide an instruction letter to the Facility Agent in form and substance acceptable to the Facility Agent; and
|
(b) |
any such pre-positioning of funds shall constitute the advance of the Loan and the Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's participation in the Loan; and
|
(c) |
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) |
The Borrower shall repay the Loan by:
|
(i) |
20 or, if the Extension Option is exercised, 28 consecutive quarterly instalments, each in the amount specified in the Repayment Schedule (the "
Instalments
" and each an "
Instalment
"); and
|
(ii) |
a balloon instalment in an amount equal to any part of the Loan remaining outstanding on the Termination Date (the "
Balloon Instalment
" and together with the Instalments, the "
Repayment Instalments
" and each a "
Repayment Instalment
").
|
(b) |
Each Instalment shall be repaid on the date specified in respect of that Instalment in the Repayment Schedule and the Balloon Instalment shall be paid on the applicable Termination Date.
|
6.2 |
Termination Date
|
6.3 |
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 Borrower, the Available Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall prepay the Loan on the last day of the Interest Period for the Loan occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by that 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
|
7.3 |
Voluntary prepayment of Loan
|
(a) |
Subject to paragraph (b) below, the Borrower may, if it gives the Facility Agent not less than
10
Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole (but not part) of the Loan.
|
(b) |
The Loan may only be prepaid after the second anniversary of the Utilisation Date.
|
7.4 |
Mandatory prepayment on sale or Total Loss
|
(a) |
in the case of a sale of the Ship, on or before the date on which the sale is completed by delivery of the Ship to the buyer; or
|
(b) |
in the case of a Total Loss, on the earlier of:
|
(i) |
the date falling 180 days after the Total Loss Date; and
|
(ii) |
the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.5 |
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 and the amount of that cancellation or prepayment and, if relevant, the part of the Loan to be prepaid or cancelled.
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and without premium or penalty.
|
(c) |
The Borrower may not re-borrow any part of the Facility which is prepaid.
|
(d) |
The Borrower shall not 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 Borrower 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.
|
8 |
PUT OPTION
|
8.1 |
Year-5 Put Option
|
(a) |
If no Default has occurred which is continuing, the Borrower shall have the right (the "
Year-5 Put Option
") to sell the Ship to the Lenders on the Initial Termination Date for the Year-5 Purchase Price, exercisable by giving written notice to the Facility Agent no later than the date falling four months prior to the Initial Termination Date.
|
(b) |
The Facility Agent shall provide a copy of the notice referred to in paragraph (a) of this Clause 8.1 (
Year-5 Put Option
) to the Lenders within 1 Business Day after receipt of such notice.
|
(c) |
If the Borrower exercises the Year-5 Put Option then, subject to the exercise of the Extension Option by the Lenders pursuant to Clause 8.2 (
Extension Option
), the Borrower shall sell, and the Lenders shall be obliged to procure that the Buyer will purchase, the Ship for a purchase price equal to the Year-5 Purchase Price in accordance with Clause 8.4 (
Sale and delivery terms
).
|
8.2 |
Extension Option
|
(a) |
If the Borrower exercises the Year-5 Put Option, the Lenders shall have the right (the "
Extension Option
") to extend the Termination Date of the Loan to the Extended Termination Date, exercisable at their sole discretion by giving written notice to the Facility Agent no later than the date falling 30 days after receipt of the notice given by the Facility Agent to the Lenders under paragraph (b) of Clause 8.1 (
Year-5 Put Option
).
|
(b) |
The Facility Agent shall provide a copy of the notice referred to in paragraph (a) of this Clause 8.2 (
Extension Option
) to the Borrower within 1 Business Day after receipt of such notice.
|
(c) |
If the Lenders exercise the Extension Option:
|
(i) |
the Termination Date shall be extended to the Extended Termination Date;
|
(ii) |
the exercise of the Year-5 Put Option by the Borrower shall be cancelled in its entirety and the Lenders shall not have an obligation to purchase the Ship; and
|
(iii) |
the parties to this Agreement entering into such documentation amending and supplementing this Agreement and any other Finance Documents as may be required in relation to the exercise of the Extension Option to be in a form acceptable to the Facility Agent (acting at the instructions of the Majority Lenders) by no later than the Initial Termination Date and any other document as may be required by the Facility Agent (acting at the instructions of the Majority Lenders) to effect the same in a manner acceptable to the Facility Agent (acting at the instructions of the Majority Lenders).
|
8.3 |
Year-7 Put Option
|
(a) |
The Facility Agent shall provide a copy of the notice referred to in paragraph (a) of this Clause 8.3 (
Year-7 Put Option
) to the Lenders within 1 Business Day after receipt of such notice.
|
(b) |
If the Borrower exercises the Year-7 Put Option then the Borrower shall sell, and the Lenders shall be obliged to procure that the Buyer will purchase, the Ship for a purchase price equal to the applicable Year-7 Purchase Price in accordance with Clause 8.4 (
Sale and delivery terms
).
|
8.4 |
Sale and delivery terms
|
(a) |
If the Borrower validly exercises a Put Option and, in the case of the Year-5 Put Option, the Extension Option is not exercised, the Borrower and the Buyer shall enter (and the Lenders shall procure that the Buyer enters) into a Sale Contract in the Norwegian Saleform 2012 for the sale by the Borrower, and the purchase by the Buyer, of the Ship for the applicable Purchase Price.
|
(b) |
The Sale Contract shall include, without limitation, the following provisions:
|
(i) |
the delivery of the Ship shall take place at a safe and ice-free berth or port and on a date to be specified by the Buyer (acting on the instructions of the Majority Lenders, each acting reasonably)
provided that
(A)
loading ports of cargo of the type transported by the Ship and (B) scrapping areas for vessels of the same type as the Ship, shall be deemed an acceptable place of delivery of the Ship for the purpose of paragraph (b)(i) of this
Clause 8.4 (
Sale and delivery terms
);
|
(ii) |
the Ship shall be free of any class recommendations or conditions;
|
(iii) |
the value of any pumpable fuel and unbroached/bulk lube oils shall be paid by the Buyer to the Borrower at the time of delivery on the basis of their invoiced cost;
|
(iv) |
the cargo holds of the Ship shall be clean;
|
(v) |
the condition of the Ship shall be established by a joint survey, the costs of which shall be borne jointly by the Borrower and the Buyer;
|
(vi) |
all trading and class certificates shall be valid for a period of not less than 6 months after the proposed delivery date;
|
(vii) |
the Borrower shall guarantee that the Ship, at the time of delivery, is free from all charters, encumbrances, mortgages, maritime liens or other debts or liabilities whatsoever and if any claims have accrued prior to the time of delivery, the Borrower shall indemnify the Buyer against all consequences of such claims;
|
(viii) |
any taxes, consular and other charges and expenses connected with the purchase of the Ship and its registration under the Buyer's flag and the closing of the Ship's current flag, shall be for the Borrower's account;
|
(ix) |
all spares on board shall be included in the sale; and
|
(x) |
the Borrower shall furnish the Buyer with documentation reasonably requested by the Buyer including but not limited to:
|
(A) |
evidence (in form and substance acceptable to the Buyer) of the authorisation and capacity for the Borrower to sell the Ship and enter into all documentation in connection with such sale including but not limited to resolutions of the shareholders of the Borrower, resolutions of the board of directors of the Borrower and any power of attorney under which the Borrower's representatives sign any of the delivery documents (in each case notarised and apostilled or legalised) and certified true copies of the certificate of incorporation and articles of association (or equivalent) of the Borrower;
|
(B) |
documentation validly transferring title to the Ship to the Buyer (including, without limitation, two original bills of sale notarised and apostilled or legalised as necessary);
|
(C) |
any documentation required for the registration of the Ship on the Buyer's chosen flag under the name of the Buyer;
|
(D) |
evidence that the Ship is free from all registered encumbrances in form and substance acceptable to the Buyer;
|
(E) |
documentation usually provided by a seller to a buyer in a second hand vessel sale and purchase transaction including but not limited to, undertakings to deliver a deletion certificate, copy of the closed CSR and commercial invoices for the Ship, bunkers and lubes remaining on board and all other monies due to the Borrower under the Sales Contract by the Buyer at delivery; and
|
(F) |
all copies classification, technical and other documents in the possession of the Borrower in relation to the Ship.
|
(xi) |
if an Event of Default occurs the Buyer shall be entitled (acting on the instructions of the Majority Lenders) to terminate the Sale Contract;
|
(c) |
The applicable Purchase Price shall be paid by the Buyer to the Borrower as follows:
|
(i) |
the obligation of the Borrower to pay to the Lenders the Balloon Instalment and all other sums then accrued and owing by the Borrower under or in connection with the Finance Documents on the Termination Date shall be set off on the date of delivery of the Ship to the Buyer against the obligation of the Lenders to pay a part of the applicable Purchase Price in an equal amount; and
|
(ii) |
any balance of the Purchase Price shall be paid by the Buyer to the Borrower on the date falling on the earlier of:
|
(A) |
60 days after the date on which the Buyer has taken delivery of the Ship in accordance with the Sale Contract; and
|
(B) |
the date on which the Buyer (after having taken delivery of the Ship in accordance with the Sale Contract) sells the Ship to any third party.
|
(d) |
If at the time of delivery of the Ship from the Borrower to the Buyer under the Sale Contract any part of the applicable Purchase Price remains outstanding (the "
Outstanding Balance
"):
|
(i) |
the Buyer shall provide, or ensure that a third party provides, Security in favour of the Borrower, which:
|
(A) |
has a net realisable value at least equal to the Outstanding Balance; and
|
(B) |
is documented in such terms as the Borrower may reasonably approve or require at the expense of the Borrower and the Buyer in equal shares,
|
(ii) |
a late payment fee shall accrue on the Outstanding Balance at a rate equal to:
|
(A) |
1 month LIBOR; and
|
(B) |
4.00 per cent. per annum,
|
9 |
INTEREST
|
9.1 |
Calculation of interest
|
9.2 |
Payment of interest
|
9.3 |
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 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 having a duration as follows:
|
(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 the relevant 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.
|
(b) |
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.
|
9.4 |
Notification of rates of interest
|
10 |
INTEREST PERIODS
|
10.1 |
Duration of Interest Periods
|
(a) |
The first Interest Period shall commence on the Utilisation Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
|
(b) |
Each Interest Period shall be three Months.
|
10.2 |
Non-Business Days
|
11 |
FEES
|
11.1 |
Agency fee
|
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 Borrower 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 Borrower 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 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 five Business Days of demand by the Facility Agent acting on the instructions of a Protected Party or claiming on its own behalf) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(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 made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
|
(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
|
(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 the 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 the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where the 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 the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(iv) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(v) |
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 Borrower.
|
(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 that Lender to do so (in which case that 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 Borrower.
|
(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 Borrower shall, within five Business Days of a demand by the Facility Agent (acting on the instructions of a Lender or claiming on its own
|
(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 loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(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 Borrower.
|
(b) |
Each Finance Party shall 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); or
|
(d) |
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, within 5 Business Days of 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 31 (
Sharing among the Finance Parties
);
|
(iii) |
funding, or making arrangements to fund, its participation in the Loan requested by the Borrower in the 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 Borrower.
|
(b) |
Each Obligor shall, on demand, indemnify each Finance Party, each 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, the 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 |
Indemnity to the Facility Agent
|
(a) |
any cost, loss or liability incurred by the Facility Agent as a result of:
|
(i) |
investigating (acting on the instructions of the Majority Lenders) any event which the Majority Lenders reasonably believe is a Default; or
|
(ii) |
acting or relying on any notice, request or instruction which the Majority Lenders reasonably believe 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 or as may be required by the Majority Lenders; and
|
(b) |
any cost, loss or liability incurred by any Indemnified Person (otherwise than by reason of that Indemnified Person's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 32.11 (
Disruption to Payment Systems etc.
) notwithstanding that Indemnified Person'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.
|
14.4 |
Indemnity to the Security Agent
|
(a) |
Each Obligor shall, within 5 Business Days of demand, indemnify each Indemnified Person against any cost, loss or liability incurred by any of them:
|
(i) |
in relation to or as a result of:
|
(A) |
any failure by the 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 that Indemnified Person 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 Indemnified Person'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 14.4 (
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 Borrower, take all reasonable but commercially prudent steps 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
) or Clause 13 (
Increased Costs
) 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, within 5 Business Days of 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
provided that
any legal fees incurred in connection therewith by the Finance Parties until the Utilisation Date:
|
(i) |
up to an aggregate amount equal to $100,000, shall be paid by the Lenders;
|
(ii) |
in excess of an aggregate amount of $100,000, shall be split between the Borrower and the Lenders in equal share; and
|
(b) |
any other Finance Documents 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 32.9 (
Change of currency
); or
|
(c) |
a Transaction Obligor requests, and the Security Agent agrees to (acting on the instructions of the Majority Lenders), 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
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by each Transaction Obligor other than the 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 Guarantor does not pay any amount when due under or in connection with any Finance Document, the 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 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 Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (
Guarantee and Indemnity
) 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 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 Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 17 (
Guarantee and Indemnity
) in a suspense account bearing interest at a rate equal to the rate on which interest is accruing on the relevant Unpaid Sum under this Agreement.
|
17.7 |
Deferral of 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 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 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(a) |
It is a corporation with limited liability, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction.
|
(b) |
It and each Transaction Obligor has the power to own its assets and carry on its business as it is being conducted.
|
18.3 |
Share capital and ownership
|
(a) |
The Borrower is authorised to issue 500 registered shares with no par value, all of which shares have been issued and the direct legal title and beneficial ownership of all those shares is held, free of any Security or other claim, by the Shareholder.
|
(b) |
The Guarantor is authorised to issue 525,000,000 registered shares consisting of 500,000,000 common shares of common stock with a par value of US$0.0001 each and 25,000,000 registered shares of preferred stock with a par value of US$0.0001 each, out of which 38,239,346 common stock and no preferred stock have been issued fully paid and 11,500,002 warrants are outstanding to purchase an aggregate of 12,065,000 commons stock.
|
(c) |
The legal title to and beneficial interest in the share capital in the Borrower is held free of any Security or any other claim by the Guarantor.
|
(d) |
None of the shares in the Borrower is subject to any option to purchase, pre-emption rights or similar rights.
|
18.4 |
Binding obligations
|
18.5 |
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 (except for Permitted 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.
|
18.6 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any Transaction Obligor; or
|
(c) |
any agreement or instrument binding upon it or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.7 |
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) |
in the case of the Borrower, its continuing registration of the 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.
|
18.8 |
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,
|
18.9 |
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.
|
18.10 |
Insolvency
|
(a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 25.8 (
Insolvency proceedings
); or
|
(b) |
creditors' process described in Clause 25.9 (
Creditors' process
),
|
18.11 |
No filing or stamp taxes
|
18.12 |
Deduction of Tax
|
18.13 |
No default
|
(a) |
No Event of Default and, on the date of this Agreement and on the Utilisation Date, no Default is continuing or might reasonably be expected to result from the making of the Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b) |
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 any other Transaction Obligor) or to which its (or any Transaction Obligor's) assets are subject which might have a Material Adverse Effect.
|
18.14 |
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.
|
18.15 |
Financial Statements
|
(a) |
Its Original Financial Statements were prepared in accordance with GAAP consistently applied.
|
(b) |
Its 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 (consolidated in the case of the Guarantor).
|
(c) |
There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of the Group, in the case of the Guarantor) since 8 May 2018.
|
(d) |
Since the date of the most recent financial statements delivered pursuant to Clause 19.2 (
Financial statements
) there has been no material adverse change in its business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the Guarantor).
|
18.16 |
Pari passu ranking
|
18.17 |
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.
|
18.18 |
Valuations
|
(a) |
All information supplied by it or on its behalf to an Approved Valuer 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 an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.
|
(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.
|
18.19 |
No breach of laws
|
(a) |
It has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
|
(b) |
No Transaction Obligor or any Affiliate thereof is in violation of and nor shall it violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described or referenced at
http://ustreas.gov/offices/enforcement/ofac
or as otherwise published from time to time.
|
18.20 |
No Charter
|
18.21 |
Compliance with Environmental Laws
|
18.22 |
No Environmental Claim
|
18.23 |
No Environmental Incident
|
18.24 |
ISM and ISPS Code compliance
|
18.25 |
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.
|
18.26 |
Financial Indebtedness
|
18.27 |
Overseas companies
|
18.28 |
Good title to assets
|
18.29 |
Ownership
|
(a) |
The Borrower is the sole legal and beneficial owner of all rights and interests which any charter creates in favour of the Borrower.
|
(b) |
The Borrower is the sole legal and beneficial owner of the Ship, the Earnings and the Insurances.
|
(c) |
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.
|
(d) |
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit any transfer of the shares of the Borrower on creation or enforcement of the security conferred by the Security Documents.
|
18.30 |
Centre of main interests and establishments
|
18.31 |
Place of business
|
18.32 |
No employee or pension arrangements
|
18.33 |
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 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.
|
18.34 |
US Tax Obligor
|
18.35 |
Margin Regulations; Investment Company Act
|
(a) |
The Borrower is not engaged, nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the United States.
|
(b) |
The Borrower is not, nor is it required to be, registered as an "investment company" under the United States of America Investment Company Act of 1940
|
18.36 |
Patriot Act
|
18.37 |
Repetition
|
19 |
INFORMATION UNDERTAKINGS
|
19.1 |
General
|
19.2 |
Financial statements
|
(a) |
if at any time the shares (or any part thereof) of the Guarantor cease to be quoted on the Nasdaq Stock Exchange or any other internationally recognised stock exchange acceptable to the Facility Agent (acting on the instructions of all Lenders), as soon as they become available, but in any event within
180
days after the end of each financial year of the Guarantor
the audited consolidated financial statements of the Guarantor for that financial year;
|
(b) |
as soon as the same become available, but in any event within
90
days after the end of each three-month period ending on 31 March, 30 June, 30 September and 31 December of each of the financial years of the Guarantor, the unaudited consolidated financial statements of the Group for that three-month period;
|
(c) |
as soon as the same become available, but in any event within 180 days after the end of each financial year of the Borrower the unaudited financial statements of the Borrower for that financial year;
|
(d) |
as soon as the same become available, but in any event within
90
days after the end of each three-month period ending on 31 March, 30 June, 30 September and 31 December of each of the financial years of the Borrower:
|
(i) |
the unaudited financial statements of the Borrower for that three-month period; and
|
(ii) |
management accounts of the Borrower in a format approved by the Facility Agent which show the results of the operation of the Ship during the preceding that three-month period.
|
19.3 |
Requirements as to financial statements
|
(a) |
Each set of financial statements delivered by the Borrower pursuant to Clause 19.2 (
Financial statements
) shall be certified by an officer of that company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at the date as at which those financial statements were drawn up.
|
(b) |
The Borrower shall procure that each set of financial statements of a Transaction Obligor delivered pursuant to Clause 19.2 (
Financial statements
) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Facility Agent:
|
(i) |
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent acting on the instructions of the Majority Lenders, to make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
19.4 |
Information: miscellaneous
|
(a) |
all documents dispatched by it to its shareholders (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 upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which is made against any member of the Group and which might have a Material Adverse Effect;
|
(d) |
promptly, its constitutional documents where these have been amended or varied;
|
(e) |
promptly, such further information and/or documents regarding:
|
(i) |
the Ship, goods transported on the Ship, the Earnings or the Insurances;
|
(ii) |
the Security Assets;
|
(iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
(iv) |
the financial condition, business and operations of any Transaction Obligor,
|
(f) |
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.
|
19.5 |
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 (acting on the instructions of the Majority Lenders), the Borrower shall supply to the Facility Agent a certificate signed by a senior officer 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).
|
19.6 |
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
|
(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 (acting on the instructions of the Majority Lenders.
|
(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 Designated Website. The Obligors shall comply with any such request within 10 Business Days.
|
19.7 |
"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.
|
19.8 |
Anti-money laundering
|
(a) |
The Borrower 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 a Servicing Party (for itself) in order for that Servicing Party to be satisfied it has complied with all necessary anti-money laundering laws.
|
20 |
GENERAL UNDERTAKINGS
|
20.1 |
General
|
20.2 |
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 Approved Flag at any time of the Ship of any Transaction Document to which it is a party; and
|
(iii) |
own and operate the Ship (in the case of the Borrower).
|
20.3 |
Corporate Existence
|
20.4 |
Compliance with laws
|
20.5 |
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,
|
20.6 |
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,
|
20.7 |
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 19.2 (
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.
|
20.8 |
Overseas companies
|
20.9 |
No change to centre of main interests
|
20.10 |
Pari passu ranking
|
20.11 |
Title
|
(a) |
The Borrower shall hold the legal title to, and own the entire beneficial interest in:
|
(i) |
the Ship, the Earnings and the Insurances; and
|
(ii) |
with effect on and from its creation or intended creation, any other assets the subject of any Transaction Security created or intended to be created by the Borrower.
|
(b) |
The Guarantor shall hold the legal title to, and own the entire beneficial interest in with effect on and from its creation or intended creation, any assets the subject of any Transaction Security created or intended to be created by the Guarantor.
|
20.12 |
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 members of Transaction Obligors other than the Borrower, the subject of the Security created or intended to be created by the Finance Documents.
|
(b) |
The Borrower shall not:
|
(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 a Transaction Obligor or any other member of the Group;
|
(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.
|
20.13 |
Disposals
|
(a) |
No Obligor 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:
|
(i) |
in the case of the Borrower, any asset (including without limitation the Ship, the Earnings or the Insurances); and
|
(ii) |
in the case of the Guarantor, all or substantially all of its assets.
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any Charter as all Charters are subject to Clause 22.15 (
Restrictions on chartering, appointment of managers etc.
); and
|
(ii) |
a sale of the Ship after the second anniversary of the Utilisation Date provided that the Borrower complies with the prepayment obligations in Clause 7 (
Prepayment and Cancellation
).
|
20.14 |
Merger
|
20.15 |
Change of business
|
(a) |
The Guarantor shall procure that no substantial change is made to the general nature of the business of the Guarantor from that carried on at the date of this Agreement of the holding of single purpose ship owning subsidiaries and arrangement of acquisition, financing and the operation of vessels on behalf of these single purpose ship owning subsidiaries.
|
(b) |
The Borrower shall not engage in any business other than the ownership and operation of the Ship.
|
20.16 |
Financial Indebtedness
|
20.17 |
Expenditure
|
20.18 |
Share capital
|
(a) |
purchase, cancel or redeem any of its share capital;
|
(b) |
increase or reduce its authorised share capital;
|
(c) |
issue any further shares except to the Guarantor and provided such new shares are made subject to the terms of the Shares Security immediately upon the issue of such new shares in a manner satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) and the terms of the Shares Security are complied with;
|
(d) |
appoint any further director or officer of the Borrower (unless the provisions of the Shares Security are complied with).
|
20.19 |
Dividends and other distributions
|
(a) |
in the case of the Borrower, any Event of Default; and
|
(b) |
in the case of the Guarantor, an Event of Default under Clause 25.2 (
Non-payment
), 25.6 (
Cross Default
), 25.7 (
Insolvency
), 25.8 (
Insolvency Proceedings
) or 25.10 (
Ownership of the Obligors
),
|
(i) |
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
(ii) |
repay or distribute any dividend or share premium reserve; or
|
(iii) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so.
|
20.20 |
Other transactions
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Transaction Obligor and where such loan or form of credit is Permitted Financial Indebtedness;
|
(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 the Borrower assumes any liability of any other person other than any guarantee or indemnity given
|
(i) |
under the Finance Documents; or
|
(ii) |
in the ordinary course of its business;
|
(c) |
enter into any material agreement other than:
|
(i) |
the Transaction Documents;
|
(ii) |
any other agreement expressly allowed under any other term of this Agreement;
|
(d) |
enter into any transaction on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms' length; or
|
(e) |
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks.
|
20.21 |
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.
|
20.22 |
No Subsidiaries
|
20.23 |
Employees and ERISA Compliance
|
20.24 |
Books and records
|
20.25 |
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 (acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders) 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 acting reasonably (and in such form as the Security Agent (acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders) 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 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
|
(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 20.25 (
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.
|
21 |
INSURANCE UNDERTAKINGS
|
21.1 |
General
|
21.2 |
Maintenance of obligatory insurances
|
(d) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(a) |
war risks (including the London Blocking and Trapping addendum or its equivalent);
|
(b) |
protection and indemnity risks (including liability for oil pollution for an amount of no less than $1,000,000,000 and excess war risk P&I cover) on standard Club Rules, covered by a Protection and Indemnity association which is a member of the International Group of Protection and Indemnity Associations (or, if the International Group ceases to exist, any other leading protection and indemnity association or other leading provider of protection and indemnity insurance) (including, without limitation, the proportion (if any) of any collision liability not covered under the terms of the hull cover); and
|
(c) |
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 the Borrower to insure and which are specified by the Facility Agent (acting on the instructions of the Majority Lenders) by notice to the Borrower.
|
21.3 |
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 Loan; and
|
(ii) |
the Market Value of the 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 (such amount currently being $1,000,000,000);
|
(d) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Ship;
|
(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.
|
21.4 |
Further protections for the Finance Parties
|
(a) |
subject always to paragraph (b), name the 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 (acting on the instructions of the Majority Lenders), 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 (acting on the instructions of the Majority Lenders);
|
(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 the Borrower fails to do so.
|
21.5 |
Renewal of obligatory insurances
|
(a) |
at least 21 days before the expiry of any obligatory insurance:
|
(i) |
notify the Facility Agent of the Approved Brokers (or other insurers) and any protection and indemnity or war risks association through or with which the Borrower proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii) |
obtain the Facility Agents' approval (acting on the instructions of the Majority Lenders) 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 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.
|
21.6 |
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 (acting on the instructions of the Majority Lenders) and including undertakings by the Approved 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 21.4 (
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 under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of the 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 forthwith upon being so requested by the Facility Agent.
|
21.7 |
Copies of certificates of entry
|
(a) |
a certified copy of the certificate of entry for the 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 the Ship.
|
21.8 |
Deposit of original policies
|
21.9 |
Payment of premiums
|
21.10 |
Guarantees
|
21.11 |
Compliance with terms of insurances
|
(a) |
The Borrower shall not do nor 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, the 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 21.6 (
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 (acting on the instructions of the Majority Lenders);
|
(ii) |
not make any changes relating to the classification or classification society or manager or operator of the Ship 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 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, 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.
|
21.12 |
Alteration to terms of insurances
|
21.13 |
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.
|
21.14 |
Provision of copies of communications
|
(a) |
the Approved Brokers;
|
(b) |
the approved protection and indemnity and/or war risks associations; and
|
(c) |
the approved insurance companies and/or underwriters,
|
(i) |
the 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 the 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.
|
21.15 |
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 21.16 (
Mortgagee's interest and additional perils insurances
) or dealing with or considering any matters relating to any such insurances,
|
21.16 |
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 each 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 Borrower 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.
|
22 |
SHIP UNDERTAKINGS
|
22.1 |
General
|
22.2 |
Ship's names and registration
|
(a) |
keep the Ship registered in its name under the 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;
|
(c) |
not enter into any dual flagging arrangement in respect of the Ship;
|
(d) |
not change the name of the Ship,
|
(i) |
the Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on the 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 and on such other terms and in such other form as the Facility Agent, acting on the instructions of the Majority Lenders, shall approve or require; and
|
(ii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting on the instructions of the Majority Lenders, shall approve or require.
|
22.3 |
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 with the Approved Classification Society.
|
22.4 |
Modifications
|
22.5 |
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 the Ship, the property of the Borrower and subject to the security constituted by the Mortgage.
|
(b) |
The Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship.
|
22.6 |
Surveys
|
22.7 |
Inspection
|
22.8 |
Prevention of and release from arrest
|
(a) |
The Borrower shall promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship, the Earnings or the Insurances;
|
(ii) |
all Taxes, dues and other amounts charged in respect of the Ship, the Earnings or the Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of the Ship, the Earnings or the Insurances.
|
(b) |
The Borrower shall immediately upon receiving notice of the arrest of the Ship 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.
|
22.9 |
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, 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 nor allow its employment, operation or management in any manner contrary to any law or regulation including but not
|
22.10 |
ISPS Code
|
(a) |
procure that the Ship and the company responsible for the Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for the Ship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
22.11 |
Sanctions and Ship trading
|
(a) |
that the Ship shall not be used by or for the benefit of a Prohibited Person;
|
(b) |
that the 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 the 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 the Ship shall contain, for the benefit of the Borrower, language which gives effect to the provisions of paragraph (c) of Clause 22.9 (
Compliance with laws etc.
) as regards Sanctions and of this Clause 22.11 (
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).
|
22.12 |
Trading in war zones
|
(a) |
In the event of hostilities in any part of the world (whether war is declared or not), the Borrower shall not cause or permit the Ship to enter or trade to any zone which is declared a war zone by any government or by the Ship's war risks insurers unless:
|
(b) |
the prior written consent of the Security Agent acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders has been given; and
|
(c) |
the Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders may require.
|
22.13 |
Provision of information
|
(a) |
the 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 the Ship and any payments made by it in respect of the 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,
|
22.14 |
Notification of certain events
|
(a) |
any casualty to the Ship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of the Ship for hire;
|
(d) |
any requirement or recommendation made in relation to the Ship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of the Ship or any exercise or purported exercise of any lien on the Ship or the Earnings;
|
(f) |
any intended dry docking of the Ship;
|
(g) |
any Environmental Claim made against the Borrower or in connection with the Ship, or any Environmental Incident;
|
(h) |
any claim for breach of the ISM Code or the ISPS Code being made against the Borrower, an Approved Manager or otherwise in connection with the 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,
|
22.15 |
Restrictions on chartering, appointment of managers etc.
|
(a) |
let the Ship on demise charter for any period;
|
(b) |
enter into any time, voyage or consecutive voyage charter in respect of the Ship other than a Permitted Charter;
|
(c) |
terminate or material amend or supplement a Management Agreement;
|
(d) |
appoint a manager of the Ship other than an Approved Commercial Manager or an Approved Technical Manager or agree to any alteration to the terms of an Approved Manager's appointment;
|
(e) |
de activate or lay up the Ship; or
|
(f) |
put the Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed
$1,500,000
(or the equivalent in any other currency) unless that person has first given to the Security Agent (acting on the instructions of the Facility Agent acting on the instructions of the Majority Lenders) and in terms satisfactory to it (acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders) a written undertaking not to exercise any lien on the Ship or the Earnings for the cost of such work or for any other reason
provided that
this paragraph (f) of Clause 22.15 (
Restrictions on chartering, appointment of managers, etc.
) will not apply in connection with the
retrofitting of the Ship for the purpose of installing scrubbers or any other exhaust gas cleaning system subject to the Borrower providing to the Facility Agent no less than 5 Business Days prior notice.
|
22.16 |
Notice of Mortgage
|
22.17 |
Sharing of Earnings
|
22.18 |
Charter assignment
|
(a) |
provide promptly to the Facility Agent a true and complete copy of any Charter exceeding 6 months (including all amendments) and all other documents related thereto for a term which exceeds, or which by virtue of any optional extensions may exceed 12 months; and
|
(b) |
in respect of any Charter for a term which (excluding any optional extensions and any redelivery allowance) exceeds, or which by virtue of any optional extensions may exceed 12 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 the agreed form).
|
22.19 |
Notification of compliance
|
23 |
VALUATIONS
|
23.1 |
Valuations binding
|
23.2 |
Provision of information
|
(a) |
The Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 23 (
Valuation
) with any information which the Facility Agent (acting on the instructions of the Majority Lenders) or the shipbroker may request for the purposes of the valuation.
|
(b) |
If the 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 (acting on the instructions of the Majority Lenders) considers prudent.
|
23.3 |
Provision of valuations
|
(a) |
The Facility Agent shall, acting on the instructions of the Majority Lenders, obtain two valuations of the Ship, each from an Approved Valuer selected by the Facility Agent (acting on the instructions of the Majority Lenders), to enable the Lenders to determine the Market Value of the Ship for the purposes of paragraph (b) of Clause 21.3 (
Terms of obligatory insurances
).
|
(b) |
The Facility Agent shall obtain at the Borrower's expense the valuations referred to in paragraph (a) of this Clause 23.3 (
Provision of valuations
):
|
(i) |
once in each 12-month period (starting on the Utilisation Date); and
|
(ii) |
at any time whilst an Event of Default has occurred which is continuing.
|
24 |
EARNINGS ACCOUNT AND APPLICATION OF EARNINGS
|
24.1 |
Earnings Account
|
24.2 |
Payment of Earnings
|
24.3 |
Application of Earnings
|
(a) |
on each Repayment Date, the amount of the Repayment Instalment then due on that Repayment Date; and
|
(b) |
on the last day of each Interest Period, the amount of interest then due on that date; and
|
(c) |
on any day on which an amount is otherwise due from the Borrower under a Finance Document, an amount necessary to meet that due amount,
|
24.4 |
Shortfall in Earnings
|
24.5 |
Application of funds
|
(a) |
the Repayment Instalment due on that Repayment Date;
|
(b) |
the amount of interest payable on that Interest Payment Date; and
|
(c) |
the amount of any fee specified in a Fee Letter on its relevant due date,
|
24.6 |
Location of Earnings Account
|
(a) |
comply with any requirement of the Facility Agent (acting on the instructions of the Majority Lenders) as to the location or relocation of the Earnings Account; and
|
(b) |
execute any documents which the Facility Agent (acting on the instructions of the Majority Lenders) 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) the Earnings Account.
|
25 |
EVENTS OF DEFAULT
|
25.1 |
General
|
25.2 |
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.
|
25.3 |
Specific obligations
|
25.4 |
Other obligations
|
(a) |
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 25.2 (
Non-payment
) and Clause 25.3 (
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 10 Business Days of the Facility Agent giving notice to the Borrower or (if earlier) any Transaction Obligor becoming aware of the failure to comply.
|
25.5 |
Misrepresentation
|
25.6 |
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 25.6 (
Cross default
) in respect of the Guarantor if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than
$5,000,000
(or its equivalent in any other currency) in aggregate.
|
25.7 |
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) |
obtains or receives a deferral or suspension of payments, a rescheduling or re-organisation of debt (or certain debt) or an arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them in respect of such deferral, suspension, rescheduling or re-organisation, strictly by court order or by the filing of documents with a court.
|
(b) |
A moratorium is
officially declared in respect of any indebtedness of any Transaction Obligor.
|
(A) |
should a Transaction Obligor, by any reason, including without limitation, any actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (including any Finance Party in its capacity as such) with a view to rescheduling, deferring, re-organising or suspending, any of its indebtedness, the existence of such negotiations or the entry, as a result of such negotiations, into any agreement or contract with one or more creditors (including any Finance Party in its capacity as such) setting out the terms of any such rescheduling, deferral, reorganisation or suspension of its indebtedness, shall not in itself constitute an Event of Default; and
|
(B) |
no Event of Default will occur under this Clause 25.7 (
Insolvency
) if any of the events described in paragraphs (a)-(b) above occurs in respect of an Approved Manager which is a member of the Group and the Borrower replaces such Approved Manager by another Approved Manager and delivers to the Facility Agent (in form and substance satisfactory to the Majority Lenders) the documents referred to at paragraph 4.3 of Part B (
Conditions Precedent to Utilisation
) of Schedule 2 within 7 Business Days from the date of such occurrence.
|
25.8 |
Insolvency proceedings
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i) |
the suspension of payments, 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 (other than in respect of a solvent liquidation of a member of the Group which is not a Transaction Obligor), 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 25.8 (
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 Borrower replaces such Approved Manager by another Approved Manager and delivers to the Facility Agent (in form and substance satisfactory to the Majority Lenders) the documents referred to at paragraph 3.3 of Part B (
Conditions Precedent to Utilisation
) of Schedule 2 within 7 Business Days from the date of such occurrence.
|
25.9 |
Creditors' process
|
25.10 |
Ownership of the Obligors
|
(a) |
The Borrower is not or ceases to be a 100 per cent. directly or indirectly owned Subsidiary of the Guarantor.
|
(b) |
Any person or group of persons acting in concert (other than those disclosed to the Facility Agent as part of the "Know your customer" checks) gains control of the 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).
|
(d) |
For the purpose of paragraph (b) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Guarantor by any of them, either directly or indirectly, to obtain or consolidate control of the Guarantor.
|
25.11 |
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 if that cessation individually or together with any other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents.
|
(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.
|
25.12 |
Security imperilled
|
25.13 |
Cessation of business
|
25.14 |
Arrest
|
25.15 |
Expropriation
|
(a) |
an arrest or detention of the Ship referred to in Clause 25.14 (
Arrest
); or
|
(b) |
any Requisition.
|
25.16 |
Repudiation and rescission of agreements
|
25.17 |
Litigation
|
25.18 |
Material adverse change
|
25.19 |
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,
|
25.20 |
Enforcement of security
|
26 |
CHANGES TO THE LENDERS
|
26.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
26.2 |
Conditions of assignment or transfer
|
(a) |
An Existing Lender shall give to the Obligors no less than 30-days' notice prior to effecting an assignment or transfer unless the assignment or transfer is made at a time when an Event of Default has occurred and is continuing.
|
(b) |
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.
|
(c) |
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.
|
(d) |
A transfer will only be effective if the procedure set out in Clause 26.5 (
Procedure for transfer
) is complied with.
|
(e) |
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
|
(f) |
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.
|
26.3 |
Assignment or transfer fee
|
26.4 |
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 26 (
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.
|
26.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 26.2 (
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 in its sole discretion that 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 26.9 (
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 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 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
".
|
26.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 26.2 (
Conditions of assignment or transfer
) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement 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 Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(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 in its sole discretion 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 26.9 (
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 26.6 (
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 26.5 (
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 26.2 (
Conditions of assignment or transfer
).
|
26.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
26.8 |
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 a 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.
|
26.9 |
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 26.5 (
Procedure for transfer
) or any assignment pursuant to Clause 26.6 (
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 26.9 (
Pro rata interest settlement
), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b) |
In this Clause 26.9 (
Pro rata interest settlement
) references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
(c) |
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 26.9 (
Pro rata interest settlement
) but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.
|
27 |
CHANGES TO THE TRANSACTION OBLIGORS
|
27.1 |
Assignment or transfer by Transaction Obligors
|
27.2 |
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 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) |
Without prejudice to paragraph (a) of this Clause 27.2 (
Release of security
), at the end of the Security Period (or upon the Total Loss or sale of the Ship and payment of all amounts due by the Borrower under Clause 7.4 (
Mandatory prepayment on sale or Total Loss
)), the Security Agent shall release the Transaction Security.
|
(c) |
If the Security Agent (acting on the instructions of the Facility Agent acting on the instructions of the Majority Lenders) is satisfied that a release is allowed under this Clause 27.2 (
Release of security
) (at the request and expense of the Borrower) 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.
|
28 |
THE FACILITY AGENT
|
28.1 |
Appointment of the Facility Agent
|
(a) |
Each of the Lenders appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each of 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.
|
28.2 |
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) (A) 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) or (B) in its capacity as Facility Agent under the Transaction Documents.
|
(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) |
Without prejudice to paragraph (a)(ii) above, paragraph (a)(i) 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 41 (
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 28.2 (
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.
|
28.3 |
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 or notice which is delivered to the Facility Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause 26.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d) |
Notwithstanding anything set out in a Transaction Document, 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 circumstance and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties but shall not have any duty to verify whether the circumstance described has actually occurred or whether it constitutes a Default.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest or any fee payable to a Finance Party under this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility Agent shall provide to the Borrower
within 5 Business Days of a request by the Borrower (but no more frequently than once per calendar quarter), 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 fax number (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).
|
28.4 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent as a trustee or fiduciary of any other person.
|
(b) |
The Facility Agent shall not 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.
|
28.5 |
Application of receipts
|
28.6 |
Business with the Group
|
28.7 |
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 25.2 (
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 the Utilisation Request) 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 (at the Borrower's expense) 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 (at the Borrower's expense) 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) |
Without prejudice to Clause 28.4 (
No fiduciary duties
), 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.
|
28.8 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, 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.
|
28.9 |
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.
|
28.10 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 32.11 (
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 (including, without limitation, for negligence or any other category of 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 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.
|
28.11 |
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 32.11 (
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 a Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
28.12 |
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 Borrower.
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, 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) |
The retiring Facility Agent shall, at the Borrower's cost, 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 Borrower shall indemnify the retiring Facility Agent prior to it being required to undertake any actions referred to in this sub-paragraph for the amount of all costs and expenses (including legal fees) to be properly incurred by it in making available such documents and records and providing such assistance.
|
(e) |
All Parties shall consult, co-operate and use commercially reasonable endeavours to appoint a successor Facility Agent and the retiring Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(f) |
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 (d) above) but shall remain entitled to the benefit of Clause 14.3 (
Indemnity to the Facility Agent
) and this Clause 28 (
The Facility Agent
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g) |
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 (d) above shall be for the account of the Borrower.
|
(h) |
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent in accordance with this Agreement.
|
(i) |
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
(i) |
the Facility Agent fails to respond to a request under Clause 12.7 (
FATCA Information
) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii) |
the information supplied by the Facility Agent pursuant to Clause 12.7 (
FATCA Information
) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii) |
the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
28.13 |
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) |
Without prejudice to Clause 28.4 (
No fiduciary duties
), the Facility 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.
|
28.14 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 26.9 (
Pro rata interest settlement
), the Facility Agent may treat a 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 a 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 to or by 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, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 35.5 (
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, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 35.2 (
Addresses
) and sub-paragraph (ii) of paragraph (a) of Clause 35.5 (
Electronic communication
) and the Facility Agent shall be entitled to treat such person as the person
|
28.15 |
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 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.
|
28.16 |
Facility Agent's management time
|
28.17 |
Deduction from amounts payable by the Facility Agent
|
28.18 |
Reliance and engagement letters
|
28.19 |
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 Borrower or any person who is a party to, or referred to in, a Finance Document,
|
28.20 |
Majority Lenders' Instructions
|
(a) |
Notwithstanding anything to the contrary contained in the Transaction Documents, the Parties acknowledge that where any provision in a Transaction Document refers to the Facility Agent being obliged to or entitled to take any specified action, exercise any discretion, make any determination, give any consent or waiver, or act in a certain way in connection with the transactions contemplated by the Transaction Documents, it shall or may (as the case may be) take such specified action, exercise such discretion, make such determination, give any consent in accordance with the instructions or directions of the
|
(b) |
Any instructions given by the Majority Lenders or the Lenders shall be in writing and any instructions by the Majority Lenders on matters which do not require the consent or instructions of all the Lenders as specified in this Agreement shall be binding on all the Lenders.
|
(c) |
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders or the Lenders (as the case may be) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
(d) |
In the absence of instructions from the Majority Lenders the Facility Agent shall not be obliged to take action.
|
(e) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining the relevant Finance Party's consent) in any legal or arbitration proceedings relating to any Transaction Document.
|
29 |
THE SECURITY AGENT
|
29.1 |
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 29 (
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.
|
29.2 |
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 the purposes of this Clause 29.2 (
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 29.2 (
Parallel Debt (Covenant to pay the Security Agent)
) to the extent permitted by applicable law, shall be applied in accordance with Clause 32.5 (
Application of receipts; partial payments
).
|
(f) |
This Clause 29.2 (
Parallel Debt (Covenant to pay the Security Agent)
) shall apply, with any necessary modifications, to each Finance Document.
|
29.3 |
Enforcement through Security Agent only
|
29.4 |
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) (A) 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
|
(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 Facility Agent (acting on the instructions of the Majority Lenders) shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Without prejudice to paragraph (a)(ii) above, paragraph (a)(i) above shall not apply:
|
(i) |
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.
|
(ii) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause 29.28 (
Application of receipts
);
|
(B) |
Clause 29.29 (
Permitted Deductions
); and
|
(C) |
Clause 29.30 (
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 41 (
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 (ii) 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
|
(h) |
Without prejudice to the remainder of this Clause 29.4 (
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 arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
29.5 |
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 circumstance and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties but shall not have any duty to verify whether the circumstances described has actually occurred or whether it constitutes a Default.
|
(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).
|
29.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor or any other person.
|
(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.
|
29.7 |
Business with the Group
|
29.8 |
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; and
|
(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 the Borrower (other than the Utilisation Request) 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 (at the Borrower's cost) 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 (at the Borrower's cost) 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) |
Without prejudice to Clause 29.6 (
No fiduciary duties
) and 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.
|
29.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, 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.
|
29.10 |
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.
|
29.11 |
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, 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 sub-paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of 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
|
(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 Delegate 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 Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate 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 Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
29.12 |
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 and every Delegate, 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, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate 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 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 a Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
29.13 |
Resignation of the Security Agent
|
(a) |
The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, 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, at the Borrower's cost, 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 Borrower shall indemnify the retiring Security Agent prior to it being required to undertake any actions referred to in this sub-paragraph for the amount of all costs and expenses (including legal fees) to be 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 29.25 (
Winding up of trust
) and paragraph (d) above) but shall remain entitled to the benefit of Clause 14.4 (
Indemnity to the Security Agent
) and this Clause 29 (
The Security Agent
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(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 Borrower.
|
(h) |
The consent of the Borrower (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
29.14 |
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) |
Without prejudice to Clause 29.6 (
No fiduciary duties
) and 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.
|
29.15 |
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.
|
29.16 |
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 14.4 (
Indemnity to the Security Agent
), Clause 16 (
Costs and Expenses
) and Clause 29.12 (
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 Borrower 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
|
(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 Borrower 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 Borrower agreeing that it is otherwise appropriate in the circumstances,
|
(c) |
If the Security Agent and the Borrower 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 Borrower 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 Borrower) and the determination of any investment bank shall be final and binding upon the Parties.
|
29.17 |
Reliance and engagement letters
|
29.18 |
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.
|
29.19 |
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.
|
29.20 |
Custodians and nominees
|
29.21 |
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.
|
29.22 |
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.
|
29.23 |
Acceptance of title
|
29.24 |
Releases
|
29.25 |
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 29.13 (
Resignation of the Security Agent
) shall release, without recourse or warranty, all of its rights under each Security Document.
|
29.26 |
Powers supplemental to Trustee Acts
|
29.27 |
Disapplication of Trustee Acts
|
29.28 |
Application of receipts
|
(a) |
in discharging any sums owing to the Security Agent (in its capacity as such) other than pursuant to Clause 29.2 (
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 32.5 (
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.
|
29.29 |
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 Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
29.30 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
29.31 |
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.
|
29.32 |
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.
|
29.33 |
Amounts received by Obligors
|
29.34 |
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 Borrower or any person who is a party to, or referred to in, a Finance Document,
|
29.35 |
Majority Lenders' Instructions
|
(e) |
Notwithstanding anything to the contrary contained in the Transaction Documents, the Parties acknowledge that where any provision in Transaction Document refers to the Security Agent being obliged to or entitled to take any specified action, exercise any discretion, make any determination, give any consent or waiver, or act in a certain way in connection with the transactions contemplated by the Transaction Documents, it shall or may (as the case may be) take such specified action, exercise such discretion, make such determination, give any consent in accordance with the instructions or directions of the Facility Agent (acting on the instructions of the Majority Lenders or all Lenders, as the case may be) and in doing so shall be deemed to have acted reasonably.
|
(f) |
Any instructions given by the Majority Lenders shall be in writing and be binding on all the Lenders.
|
(g) |
The Security Agent may refrain from acting in accordance with the instructions of the Facility Agent until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
(h) |
In the absence of instructions from the Facility Agent, the Security Agent shall not be obliged to take any action.
|
30 |
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.
|
31 |
SHARING AMONG THE FINANCE PARTIES
|
31.1 |
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 32 (
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 32.5 (
Application of receipts; partial payments
).
|
31.2 |
Redistribution of payments
|
31.3 |
Recovering Finance Party's rights
|
31.4 |
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.
|
31.5 |
Exceptions
|
(a) |
This Clause 31 (
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.
|
32 |
PAYMENT MECHANICS
|
32.1 |
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.
|
32.2 |
Distributions by the Facility Agent
|
32.3 |
Distributions to a Transaction Obligor
|
32.4 |
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) |
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
|
32.5 |
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.
|
32.6 |
No set-off by Transaction Obligors
|
32.7 |
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.
|
32.8 |
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.
|
32.9 |
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 (acting on the instructions of the Majority Lenders) (after consultation with the Borrower); 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 on the instructions of the Majority Lenders).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting on the instructions of the Majority Lenders and after consultation with the Borrower) specifies (acting on the instructions of the Majority Lenders) to be necessary, be amended to comply with any generally accepted conventions and market practice in the London interbank market and otherwise to reflect the change in currency.
|
32.10 |
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.
|
32.11 |
Disruption to Payment Systems etc.
|
(a) |
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower 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 Borrower 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 Borrower 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 41 (
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 32.11 (
Disruption to Payment Systems etc.
); and
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
33 |
SET-OFF
|
34 |
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.
|
35 |
NOTICES
|
35.1 |
Communications in writing
|
35.2 |
Addresses
|
(a) |
in the case of the Borrower, that specified in Schedule 1 (
The Parties
);
|
(b) |
in the case of each Lender or any other Obligor, 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
),
|
35.3 |
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:
|
(i) |
if by way of fax, when received in legible form;
|
(ii) |
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; or
|
(iii) |
if by way of electronic mail, in accordance with Clause 35.5 (
Electronic communication
),
|
(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 Borrower 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.
|
35.4 |
Notification of address and fax number
|
35.5 |
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 35.5 (
Electronic communication
).
|
35.6 |
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 (acting on the instructions of the Majority Lenders), accompanied by a certified English translation prepared by a translator approved by the Facility Agent (acting on the instructions of the Majority Lenders) and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
36 |
CALCULATIONS AND CERTIFICATES
|
36.1 |
Accounts
|
36.2 |
Certificates and determinations
|
36.3 |
Day count convention
|
37 |
PARTIAL INVALIDITY
|
38 |
REMEDIES AND WAIVERS
|
39 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
40 |
IRREVOCABLE PAYMENT
|
41 |
AMENDMENTS AND WAIVERS
|
41.1 |
Required consents
|
(a) |
Subject to Clause 41.2 (
All Lender matters
) and Clause 41.3 (
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 41 (
Amendments and Waivers
).
|
(c) |
Without prejudice to the generality of Clause 28.7 (
Rights and discretions
), the Facility Agent may at the Borrower's cost engage and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
(d) |
Paragraph (c) of Clause 26.9 (
Pro rata interest settlement
) shall apply to this Clause 41 (
Amendments and Waivers
).
|
41.2 |
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 27 (
Changes to the Transaction Obligors
);
|
(g) |
any provision which expressly requires the consent of all the Lenders;
|
(h) |
this Clause 41 (
Amendments and Waivers
);
|
(i) |
any change to the preamble (Background), Clause 2 (
The Facility
), Clause 3 (
Purpose
), Clause 5 (
Utilisation
), Clause 7.4 (
Mandatory prepayment on sale or Total Loss
), Clause 9 (
Interest
), Clause 24 (
Earnings Account and Application of Earnings
), Clause 26 (
Changes to the Lenders
), Clause 31 (
Sharing among the Finance Parties
), Clause 45 (
Governing Law
) or Clause 46 (
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 guarantee and indemnity granted under Clause 17 (
Guarantee and Indemnity
);
|
(ii) |
the Security Assets; or
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed,
|
(l) |
the release of the guarantee and indemnity granted under Clause 17 (
Guarantee and Indemnity
) or 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,
|
41.3 |
Other exceptions
|
41.4 |
Replacement of Screen Rate
|
(a) |
Subject to Clause 41.3 (
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 Borrower.
|
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within
5
Business Days (unless the Borrower and the Facility Agent
|
(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.
|
41.5 |
Obligor Intent
|
42 |
CONFIDENTIAL INFORMATION
|
42.1 |
Confidentiality
|
42.2 |
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 (or may potentially assign or transfer) 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 28.14 (
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 26.8 (
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 Borrower;
|
(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
|
(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 some or all of such Confidential Information may be price-sensitive information;
|
(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 Borrower and the relevant Finance Party; and
|
(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.
|
42.3 |
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 45 (
Governing Law
);
|
(vi) |
the name of the Facility Agent;
|
(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 Borrower,
|
(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.
|
42.4 |
Entire agreement
|
42.5 |
Inside information
|
42.6 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 42.2 (
Disclosure of Confidential Information
) except
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 42 (
Confidential Information
).
|
42.7 |
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.
|
43 |
CONFIDENTIALITY OF FUNDING RATES
|
43.1 |
Confidentiality and disclosure
|
(a) |
The Facility Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.
|
(b) |
The Facility Agent may disclose:
|
(i) |
any Funding Rate to the Borrower pursuant to Clause 9.4 (
Notification of rates of interest
); and
|
(ii) |
any Funding Rate 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.
|
(c) |
The Facility Agent may disclose any Funding Rate, 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 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 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
|
(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 Funding Rate 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; and
|
(iv) |
any person with the consent of the relevant Lender.
|
43.2 |
Related obligations
|
(a) |
The Facility Agent and each Obligor acknowledge that each Funding Rate 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 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:
|
(i) |
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph (c) of Clause 43.1 (
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 43 (
Confidentiality of Funding Rates
).
|
43.3 |
No Event of Default
|
44 |
COUNTERPARTS
|
45 |
GOVERNING LAW
|
46 |
ENFORCEMENT
|
46.1 |
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 46.1 (
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.
|
46.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(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 Borrower (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.
|
47 |
PATRIOT ACT NOTICE
|
47.1 |
PATRIOT Act Notice
|
Name of Borrower
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
Lord Ocean
Navigation Co.
|
The Republic of Liberia
|
C-118943
|
154 Vouliagmenis Avenue, 166 74 Glyfada, Athens Greece
|
Name of Guarantor
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
Seanergy Maritime Holdings Corp.
|
The Republic of the Marshall Islands
|
27721
|
154 Vouliagmenis Avenue, 166 74 Glyfada, Athens Greece
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
EnTrustPermal ICAV,
for and on behalf of Blue Ocean Fund
|
$
9,869,240
|
EnTrustPermal ICAV
c/o EnTrust Partners LLC 375 Park Avenue New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustpermal.com /odonnerstein@entrustpermal.com/ bkahne@entrustpermal.com
Attention: Svein Engh / Omer Donnerstein / Bruce Kahne
|
Blue Ocean Onshore Fund LP
|
$
10,464,794
|
Blue Ocean Onshore Fund LP
c/o EnTrust Partners LLC 375 Park Avenue New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustpermal.com /odonnerstein@entrustpermal.com/ bkahne@entrustpermal.com
Attention: Svein Engh / Omer Donnerstein / Bruce Kahne
|
Blue Ocean
Investments SPC, for and on behalf of Segregated Portfolio One
|
$
4,165,966
|
Blue Ocean
Investments SPC
c/o EnTrust Partners LLC 375 Park Avenue New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustpermal.com /odonnerstein@entrustpermal.com/ bkahne@entrustpermal.com
Attention: Svein Engh / Omer Donnerstein / Bruce Kahne
|
Name of Facility Agent
|
Address for Communication
|
Wilmington Trust, National Association
|
1100 North Market Street,
Wilmington, DE 19890
Attn: Jennifer Anderson
Fax:
302-636-4145
|
Name of Security Agent
|
Address for Communication
|
Wilmington Trust, National Association
|
1100 North Market Street,
Wilmington, DE 19890
Attn: Jennifer Anderson
Fax:
302-636-4145
|
1 |
Obligors
|
1.1 |
A copy of the constitutional documents of each Transaction Obligor.
|
1.2 |
A copy of a resolution of the board of directors of each Transaction Obligor:
|
(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, the Utilisation Request) 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 Transaction 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 copy of a resolution signed by the Shareholder as the holder of all the issued share capital in the Borrower, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Borrower is a party.
|
1.6 |
A certificate of each Transaction Obligor (signed by an officer) 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.
|
1.7 |
A certificate of each Transaction Obligor that is incorporated outside the UK (signed by an officer) 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.
|
1.8 |
A certificate of an officer of the relevant Transaction 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 |
Legal opinions
|
2.1 |
A legal opinion of Watson Farley & Williams, legal advisers to the Facility Agent and the Security Agent in England, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
2.2 |
If a Transaction Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Facility Agent and the Security Agent in the relevant jurisdiction, substantially in the form distributed to the Original Lenders before signing this Agreement.
|
3 |
Other documents and evidence
|
3.1 |
Evidence that any process agent referred to in Clause 46.2 (
Service of process
) has accepted its appointment.
|
3.2 |
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 Borrower 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.
|
3.3 |
Evidence that the Earnings Account has been opened with the Account Bank.
|
3.4 |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the Utilisation Date.
|
3.5 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents.
|
1 |
Borrower
|
2 |
Release of Existing Security
|
3 |
Finance Documents
|
3.1 |
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (
Conditions Precedent
).
|
3.2 |
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
).
|
4 |
Ship and other security
|
4.1 |
A duly executed original of the Account Security, the Shares Security, the Mortgage, the General Assignment and any Charter Assignment and of each document to be delivered under or pursuant to each of them together with documentary evidence that the Mortgage has been duly registered or recorded (as applicable) as a valid first preferred or priority (as applicable) ship mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
|
4.2 |
Documentary evidence that the Ship:
|
(a) |
is definitively and permanently registered in the name of the Borrower under the Approved Flag.
|
(b) |
is in the absolute and unencumbered ownership of the Borrower save as contemplated by the Finance Documents;
|
(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 Ship will, as from the Utilisation Date, be managed commercially by the Approved Commercial Manager and managed technically by the 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; and
|
(b) |
copies of the Approved Technical Manager's Document of Compliance and of the Ship's Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent requires (acting on the instructions of the Majority Lenders)) and of any other documents required under the ISM Code and the ISPS Code in relation to the Ship including without limitation an ISSC.
|
4.4 |
An opinion from an independent insurance consultant acceptable to the Facility Agent (acting on the instructions of the Majority Lenders) on such matters relating to the Insurances as the Facility Agent may require (acting on the instructions of the Majority Lenders).
|
5 |
Legal opinions
|
6 |
Other documents and evidence
|
6.1 |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the Utilisation Date.
|
From: |
Lord Ocean Navigation Co.
|
To: |
Wilmington Trust, National Association
|
1 |
We refer to the Agreement. This is the 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 the Loan on the following terms:
|
Proposed Utilisation Date: |
[●] June 2018
(or, if that is not a Business Day, the next Business Day)
|
Amount: |
[$24,500,000]
or, if less, the Available Facility
|
3 |
[You are authorised and requested to deduct from the Loan prior to funds being remitted the following amounts set out against the following items:
|
Fees payable on the Utilisation date pursuant to Clause 11 ( Fees ) |
$
[●]
|
Net proceeds of Loan |
$
[[●]]]
|
4 |
[We request that funds are prepositioned with [include details of relevant bank] in accordance with Clause 5.8 (
Prepositioning of Funds
).]
|
5 |
We hereby agree and acknowledge that the Facility Agent shall make payments strictly on the basis of the information set forth in this Utilisation Request hereto even if such information is incorrect. In the event that any of such information is incorrect, we agree that the Facility Agent shall not have any liability with respect thereto.
|
6 |
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 the Loan is satisfied on the date of this Utilisation Request.
|
7 |
The net proceeds of the Loan should be credited to
[●]
.
|
8 |
This Utilisation Request is irrevocable.
|
To: |
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Facility Agent
|
From: |
[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 26.5 (
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 26.5 (
Procedure for transfer
) of the Agreement.
|
(b) |
The proposed Transfer Date is
[●]
.
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 35.2 (
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 26.4 (
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.
|
[Existing Lender] |
[New Lender]
|
By: [●] |
By:
[●]
|
To: |
Wilmington Trust, National Association
as Facility Agent and
Lord Ocean Navigation Co.
as Borrower, for and on behalf of each Transaction Obligor
|
From: |
[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 26.6 (
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
[●]
.
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 35.2 (
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 26.4 (
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 26.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), to the Borrower (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.
|
[Existing Lender] |
[New Lender]
|
By: [●] |
By:
[●]
|
Date
|
Opening Balance
|
Amortization
|
Closing Balance
|
Interest
|
13/06/2018
|
24,500,000
|
|||
13/09/2018
|
24,500,000
|
200,000
|
24,300,000
|
876,400
|
13/12/2018
|
24,300,000
|
200,000
|
24,100,000
|
864,700
|
13/03/2019
|
24,100,000
|
200,000
|
23,900,000
|
853,000
|
13/06/2019
|
23,900,000
|
200,000
|
23,700,000
|
876,400
|
13/09/2019
|
23,700,000
|
200,000
|
23,500,000
|
876,400
|
13/12/2019
|
23,500,000
|
200,000
|
23,300,000
|
864,700
|
13/03/2020
|
23,300,000
|
200,000
|
23,100,000
|
864,700
|
13/06/2020
|
23,100,000
|
200,000
|
22,900,000
|
876,400
|
13/09/2020
|
22,900,000
|
600,000
|
22,300,000
|
476,400
|
13/12/2020
|
22,300,000
|
700,000
|
21,600,000
|
364,700
|
13/03/2021
|
21,600,000
|
700,000
|
20,900,000
|
353,000
|
13/06/2021
|
20,900,000
|
700,000
|
20,200,000
|
376,400
|
13/09/2021
|
20,200,000
|
600,000
|
19,600,000
|
476,400
|
13/12/2021
|
19,600,000
|
700,000
|
18,900,000
|
364,700
|
13/03/2022
|
18,900,000
|
600,000
|
18,300,000
|
453,000
|
13/06/2022
|
18,300,000
|
700,000
|
17,600,000
|
376,400
|
13/09/2022
|
17,600,000
|
600,000
|
17,000,000
|
476,400
|
13/12/2022
|
17,000,000
|
500,000
|
16,500,000
|
564,700
|
13/03/2023
|
16,500,000
|
500,000
|
16,000,000
|
553,000
|
13/06/2023
|
16,000,000
|
700,000
|
15,300,000
|
376,400
|
13/09/2023
|
15,300,000
|
700,000
|
14,600,000
|
376,400
|
13/12/2023
|
14,600,000
|
700,000
|
13,900,000
|
364,700
|
13/03/2024
|
13,900,000
|
700,000
|
13,200,000
|
364,700
|
13/06/2024
|
13,200,000
|
700,000
|
12,500,000
|
376,400
|
13/09/2024
|
12,500,000
|
700,000
|
11,800,000
|
376,400
|
13/12/2024
|
11,800,000
|
800,000
|
11,000,000
|
264,700
|
13/03/2025
|
11,000,000
|
700,000
|
10,300,000
|
353,000
|
13/06/2025
|
10,300,000
|
800,000
|
9,500,000
|
276,400
|
Totals
|
15,000,000
|
14,916,900
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (
Delivery of a Utilisation Request
))
|
Two Business Days before the intended Utilisation Date (Clause 5.1 (
Delivery of a Utilisation Request
))
|
Facility Agent notifies the Lenders of the Loan 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
|
SIGNED
by Stavros Gyftakis
|
)
|
/s/ Stavros Gyftakis |
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
LORD OCEAN NAVIGATION CO.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Theodora Mitropetrou |
Witness' name: Theodora Mitropetrou
|
)
|
|
Witness' address: illegible
|
)
|
SIGNED
by Stavros Gyftakis
|
)
|
/s/ Stavros Gyftakis |
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Theodora Mitropetrou |
Witness' name: Theodora Mitropetrou
|
)
|
|
Witness' address: illegible
|
)
|
SIGNED
by Bruce Kahne
|
)
|
/s/ Bruce Kahne |
duly authorised
|
)
|
General Counsel/CCO |
for and on behalf of
|
)
|
|
ENTRUSTPERMAL ICAV
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN FUND
|
||
By: EnTrustPermal Partners Offshore LP
|
||
as its Investment Advisor
|
||
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ illegible |
Witness' name:
|
)
|
375 Park Avenue |
Witness' address:
|
)
|
NY, NY 10152 |
SIGNED
by Bruce Kahne
|
)
|
/s/ Bruce Kahne |
duly authorised
|
)
|
General Counsel/CCO |
for and on behalf of
|
)
|
|
BLUE OCEAN ONSHORE FUND LP
|
)
|
|
By: EnTrust Partners LLC
|
||
as its General Partner
|
||
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name:
|
)
|
|
Witness' address:
|
)
|
SIGNED
by Bruce Kahne
|
)
|
/s/ Bruce Kahne |
duly authorised
|
)
|
General Counsel/CCO |
for and on behalf of
|
)
|
|
BLUE OCEAN INVESTMENTS SPC
|
)
|
|
for and on behalf of
|
)
|
|
SEGREGATED PORTFOLIO ONE
|
)
|
|
By: EnTrustPermal Partners Offshore LP
|
)
|
|
as its Investment Advisor
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ illegible |
Witness' name:
|
)
|
375 Park Avenue |
Witness' address:
|
)
|
NY, NY 10152 |
SIGNED
by J. Anderson
|
)
|
/s/ J. Anderson |
duly authorised
|
)
|
Vice President |
for and on behalf of
|
)
|
|
WILMINGTON TRUST,
NATIONAL ASSOCIATION
|
)
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Alisha M. Ciendaniel |
Witness' name: Alisha M. Ciendaniel
|
)
|
1100 North Market Street |
Witness' address:
|
)
|
Wilmington, DE 19890 |
SIGNED
by J. Anderson
|
)
|
/s/ J. Anderson |
duly authorised
|
)
|
Vice President |
for and on behalf of
|
)
|
|
WILMINGTON TRUST,
NATIONAL ASSOCIATION
|
)
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Alisha M. Ciendaniel |
Witness' name: Alisha M. Ciendaniel
|
)
|
1100 North Market Street |
Witness' address:
|
)
|
Wilmington, DE 19890 |
1. |
Definitions
|
2. |
Charter
Period
|
3. |
Delivery
-See Clause 35
|
4. |
Time for Delivery
|
5. |
Canceling
|
6. |
Trading
Restrictions
|
7. |
Surveys on Delivery and Redelivery
|
8. |
Inspection See Clause 42.1.14
|
9. |
Inventories, Oil and Stores
|
10. |
Maintenance and Operation
|
(a) | (i) | Maintenance and Repairs – |
(ii) |
New Class and Other Safety Requirements
|
(iii) |
Financial Security
|
11. |
Hire (See also Clause 38)
|
12. |
Mortgage See Clause 39
|
13. |
Insurance and Repairs
(See also Clause 43)
|
14. |
Insurance, Repairs and Classification
|
15. |
Redelivery (See also Clause 46)
|
16. |
Non-Lien
|
17. |
Indemnity (See also Clause 40)
|
18. |
Lien
|
19. |
Salvage
|
20. |
Wreck Removal
|
21. |
General Average
|
22. |
Assignment, Sub-Charter and Sale
|
|
|
|
|
|
|
|
"BARECON 2001" Standard Bareboat Charter
PART III
|
OPTIONAL
PART
|
"BARECON 2001" Standard Bareboat Charter
PART III
|
OPTIONAL
PART
|
"BARECON 2001" Standard Bareboat Charter
PART IV
|
OPTIONAL
PART
|
"BARECON 2001" Standard Bareboat Charter
PART V
|
OPTIONAL
PART
|
CONTENTS
|
Page
|
32
|
Definitions
|
1
|
33
|
Effectiveness and Cancelling
|
13
|
34
|
Conditions Precedent and Subsequent
|
13
|
35
|
Delivery of the Vessel
|
14
|
36
|
Charter Period
|
16
|
37
|
Fee and Deposit
|
16
|
38
|
Charterhire
|
17
|
39
|
Owner's Right of Sale and Mortgage
|
20
|
40
|
Indemnity
|
21
|
41
|
Representations and Warranties
|
22
|
42
|
Undertakings
|
26
|
43
|
Insurances, Total Loss
|
32
|
44
|
Termination Events
|
39
|
45
|
Purchase Option and Purchase Obligation
|
41
|
46
|
Owner's Rights on Termination
|
42
|
47
|
Assignment and Set-Off
|
44
|
48
|
Communications
|
45
|
49
|
Counterparts
|
45
|
50
|
Law and Jurisdiction
|
45
|
Schedule 1
|
Fixed Charterhire Payment Table
|
47
|
Schedule 2
|
Conditions Precedent and Subsequent
|
49
|
Part 1
|
49
|
|
Part 2
|
52
|
|
Part 3
|
53
|
|
Schedule 3
|
Form of Acceptance Certificate
|
54
|
32.1 |
In this Charter, unless the context otherwise requires:-
|
(a) |
V. Ships Limited, a corporation incorporated and existing under the laws of Cyprus whose registered office is at Zenas Gunther, 16-18, Agia Triada, 3035 Limassol, Cyprus, as technical manager; or
|
(b) |
Fidelity Marine Inc., a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands, as commercial manager; or
|
(c) |
any other ship management company which the Owners may approve in writing (such approval not to be unreasonably withheld or delayed).
|
(a) |
moneys borrowed;
|
(b) |
any acceptance credit;
|
(c) |
any bond, note, debenture, loan stock or similar instrument;
|
(d) |
any finance or capital lease;
|
(e) |
receivables sold or discounted (other than on a non-recourse basis);
|
(f) |
deferred payments for assets or services;
|
(g) |
any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
|
(h) |
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing according to the relevant account principles;
|
(i) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(j) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in (a) to (i) above.
|
(a) |
with respect to the Charterer, the Republic of Liberia; and
|
(b) |
with respect to the Guarantor, Republic of the Marshall Islands.
|
(a) |
in relation to the Pre-delivery Charterhire, the period of time commencing from the Owner's Funding Date and ending on the date immediately preceding the Delivery Date; and
|
(b) |
in relation to the Charterhire, during the Charter Period, each period for the calculation of the Charterhire, the first such period commencing on the Delivery Date and terminating on the date falling three months from the Delivery Date, and thereafter, each successive period of three months commencing immediately after the last date of the then current Hire
|
(a) |
the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the period of three months displayed on pages LIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate); or
|
(b) |
if, on the Quotation Date, no such rate is available, the arithmetic mean of rates (rounded up to five (5) decimal places) quoted by leading banks in the London interbank market,
|
(a) |
in relation to the Charterer, its audited financial statements for the financial year ended 2017; and
|
(b) |
in relation to the Guarantor, its audited consolidated financial statements for the financial year ended 2017, 2016 and 2015.
|
(a) |
unless a Termination Event has occurred and is continuing, any ship repairer's or outfitter's possessory lien for an amount not exceeding the Major Casualty Amount;
|
(b) |
liens for unpaid but not overdue master's and crew's wages in accordance with usual maritime practice;
|
(c) |
liens for master's disbursements incurred in the ordinary course of trading;
|
(d) |
any lien for salvage;
|
(e) |
any other liens arising by operation of law in the ordinary course of her trading (other than for master's, officer's or crew's wages outstanding); and
|
(f) |
any lien created by or on the instructions or with the prior written consent of the Owner.
|
(a) |
the Balloon Payment;
|
(b) |
all unpaid sums due and payable together with interest accrued thereon pursuant to Clause 38.9; and
|
(c) |
any other amount then due and payable but unpaid by a Security Party to the Owner under the Transaction Documents.
|
(a) |
if the Purchase Option Date falls on a Payment Date, an aggregate amount equal to:
|
(i) |
the Charterhire Principal payable on that Payment Date;
|
(ii) |
an early termination fee in an amount equal to two per cent (2%) of the amount of the Charterhire Principle payable in accordance with paragraph (i) above;
|
(iii) |
all unpaid sums due and payable together with interest accrued thereon pursuant to Clause 38.9; and
|
(iv) |
any other amount then due and payable but unpaid by a Security Party to the Owner under the Transaction Documents; and
|
(b) |
if the Purchase Option Date falls on a day other than a Payment Date, an aggregate amount equal to:
|
(i) |
the Charterhire Principal payable on the most recent Payment Date immediately preceding that Purchase Option Date;
|
(ii) |
an early termination fee in an amount equal to two per cent (2%) of the amount of the Charterhire Principle payable in accordance with paragraph (i) above;
|
(iii) |
all unpaid sums due and payable together with interest accrued thereon pursuant to Clause 38.9;
|
(iv) |
Break Costs (if any); and
|
(v) |
any other amount then due and payable but unpaid by a Security Party to the Owner under the Transaction Documents.
|
(a) |
the Account Pledge;
|
(b) |
the General Assignment;
|
(c) |
the Guarantee;
|
(d) |
the Share Charge;
|
(e) |
the Manager's Undertaking; and
|
(f) |
any other documents as may have been or shall from time to time after the date of this Charter be executed to guarantee and/or to govern and/or secure all or any part of the obligations from time to time owing by any Security Party pursuant to the Transaction Documents (whether or not any such document also secures payment of moneys from time to time owing pursuant to any other document(s) or agreement(s))
|
(a) |
which is controlled, directly or indirectly, by the first mentioned company or corporation;
|
(b) |
more than half the issued equity/share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or
|
(c) |
which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,
|
(a) |
the Pre-delivery Charterhire;
|
(b) |
the Charterhire Principal payable on the Termination Date if the Termination Date falls on a Payment Date or, as the case may be, the Charterhire Principal payable on the most recent Payment Date immediately preceding the Termination Date if the Termination Date falls on a day other than a Payment Date;
|
(c) |
a termination fee in an amount equal to two per cent (2%) of the amount of the Charterhire Principle payable in accordance with paragraph (b) above;
|
(d) |
all unpaid balance of the Handling Fee (irrespective of whether such unpaid balance has become due and payable in accordance with Clause 37.1);
|
(e) |
any and all losses, liabilities, costs and expenses incurred or suffered by the Owner and the Finance Parties as a result of the early termination of this Charter (including any Break Costs and other costs, losses, liabilities and expenses incurred or suffered by the Owner and/or any Finance Parties under the Finance Documents as a result of the early termination of this Charter);
|
(f) |
any other unpaid sums due and payable but unpaid by any Security Party under the Transaction Documents together with interest accrued thereon pursuant to Clause 38.9 from the due date for payment thereof up to and including the date of receipt by the Owner of the Termination Sum; and
|
(g) |
all liabilities, costs and expenses howsoever incurred in recovering possession of, and in repositioning, berthing, insuring and maintaining the Vessel for carrying out any works or modifications required to cause the Vessel to conform with the provisions of Clause 46.2.
|
(a) |
actual or constructive or compromised or arranged total loss of the Vessel;
|
(b) |
the Requisition for title of the Vessel; or
|
(c) |
the hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation of the Vessel (other than Requisition) by any government entity, or by persons allegedly acting or purporting to act on behalf of any government entity, unless the Vessel is released and restored to the Owner within six (6) months after such an incident or such other shorter period of time as the Owner may decide in its sole discretion.
|
(a) |
in respect of the first Payment Date, accrued on the Charterhire Principal as of the Delivery Date; and
|
(b) |
in respect of each following Payment Date, accrued on the Charterhire Principal as of the immediately preceding Payment Date,
|
32.2 |
The headings in this Charter shall not affect the interpretation of the terms of this Charter.
|
33 |
Effectiveness and Cancelling
|
33.1 |
The effectiveness of this Charter shall be subject to the Owner's receiving, contemporaneously with the execution of this Charter, the originals of the following duly executed documents:
|
(a) |
the MOA; and
|
(b) |
the Security Documents.
|
33.2 |
Notwithstanding any provision of Clause 33.1, Clause 37.1 and Clause 38.9 shall take effect upon the execution of this Charter.
|
33.3 |
Unless otherwise agreed by the parties hereto, in the event that the MOA is cancelled, terminated or rescinded for any reason whatsoever prior to the Delivery Date or in the event that the Charterer fails to deliver the Vessel to the Owner in accordance with the terms of the MOA on or before the Delivery Date:
|
33.3.1 |
this Charter shall be deemed to be cancelled forthwith (the "
Cancellation
") and the Owner shall be released from any and all obligations, liabilities and responsibilities whatsoever hereunder; and
|
33.3.2 |
the Charterer shall forthwith pay to the Owner the aggregate of the following amounts:
|
(a) |
any and all documented costs and expenses incurred by the Owner as a result of its entering into of the Transaction Documents;
|
(b) |
the unpaid balance of the Handling Fee (irrespective of whether such unpaid balance has become due and payable in accordance with Clause 37.1);
|
(c) |
any and all costs and damages incurred by the Owner as a result of the Cancelation; and
|
(d) |
all other amounts due and payable but unpaid by the Charterer under this Charter together with interest accruing thereon pursuant to Clause 38.9 up to and including the date of Cancelation.
|
34 |
Conditions Precedent and Subsequent
|
34.1 |
The Owner will not be obliged to make any payment in accordance with the terms and conditions of the MOA unless the Owner, prior to the Owner's Funding Date, has received all of the documents and other evidences listed in Part 1 of Schedule 2 (
Conditions Precedent and Subsequent
) in form and substance satisfactory to the Owner.
|
34.2 |
The Owner will not be obliged to charter the Vessel to the Charterer in accordance with the terms and conditions of this Charter unless the Owner, on or before the Delivery Date, has received all of the documents and other evidences listed in Part 2 of Schedule 2 (
Conditions Precedent and Subsequent
) in form and substance satisfactory to the Owner.
|
34.3 |
The Charterer undertakes to deliver or to cause to be delivered to the Owner within two (2) weeks after the Delivery Date the additional documents and other evidence listed in Part 3 of Schedule 2 (
Conditions Precedent and Subsequent
).
|
34.4 |
The Owner will only be obliged to charter the Vessel to the Charterer in accordance with the terms and conditions of this Charter if on the Delivery Date:-
|
34.4.1 |
no Termination Event has occurred and is continuing, and no other event has occurred, which with the giving of notice and/or lapse of time would, if not remedied, constitute a Termination Event; and
|
34.4.2 |
each of the representations and warranties contained in Clause 41 is true and correct in all material aspects by reference to the facts and circumstances then existing.
|
34.5 |
The conditions precedent set out in Schedule 2 (
Conditions Precedent and Subsequent
) and this Clause 34 are for the sole benefit of the Owner and may be waived by the Owner in whole or in part, with or without conditions, on or before the Delivery Date without prejudicing the right of the Owner to require fulfilment of such conditions in whole or in part at any time thereafter.
|
35 |
Delivery of the Vessel
|
35.1 |
The Owner's obligations to deliver the Vessel to the Charterer under this Charter are conditional upon:
|
35.1.1 |
delivery of the Vessel by the Charterer (as seller) to the Owner (as buyer) pursuant to the terms of the MOA; and
|
35.1.2 |
the Owner, pursuant to the terms of the MOA, obtaining full title to the Vessel under the MOA.
|
35.2 |
Upon the delivery of the Vessel by the Charterer (as seller) to the Owner (as buyer) pursuant to the terms of the MOA, the Vessel shall be deemed to have been simultaneously delivered to and accepted (without reservation) by the Charterer, irrespective of whether or not the Charterer shall become and be entitled to the possession and use of the Vessel. The Charterer shall not be entitled for any reason whatsoever to refuse to accept delivery of the Vessel under this Charter once title to the Vessel has passed to the Owner in accordance with the terms of the MOA.
|
35.3 |
The date of delivery for the purpose of this Charter shall be the date when the Vessel is actually delivered by the Charterer (as seller) to the Owner (as buyer) pursuant to the MOA. The Owner shall be under no responsibility for any losses or damage as a result of any delay in delivery of the Vessel to the Charterer for whatsoever reason.
|
35.4 |
Without prejudice to the provisions of Clause 35.2, the Owner and the Charterer shall on the Delivery Date sign an Acceptance Certificate in the form attached hereto as Schedule 3 (
Form of Acceptance Certificate
) evidencing delivery of the Vessel hereunder and delivery of which will constitute:
|
35.4.1 |
irrevocable, final and conclusive acceptance of the Vessel by the Charterer for the purposes of this Charter;
|
35.4.2 |
irrevocable, final and conclusive evidence that, for the purposes of the obligations and liabilities of the Owner hereunder or in connection herewith, the Vessel is at the time of delivery to the Charterer seaworthy, in accordance with the provisions of this Charter, in good working order and repair and without defect or inherent vice whether or not discoverable by the Charterer and free and clear of all Encumbrances and debts of whatsoever nature; and
|
35.4.3 |
irrevocable, final and conclusive evidence that the Vessel is satisfactory in all respects and complies with the requirements of this Charter.
|
35.5 |
The Charterer hereby acknowledges and agrees that the Owner makes no condition, term, representation or warranty, express or implied (and whether statutory or otherwise) as to the Owner's title to the Vessel or as to the seaworthiness, merchantability, condition, design, operation, performance, capacity or fitness for use or as to the eligibility of the Vessel for any particular trade or operation or any other condition, term, representation or warranty whatsoever, express or implied, with respect to the Vessel.
|
35.6 |
Following delivery under this Charter, the Vessel will be in every respect at the sole risk of the Charterer who will bear all risk of loss, theft, damage or destruction to the Vessel from any cause whatsoever.
|
35.7 |
The Charterer hereby waives all of its rights in respect of any condition, term, representation or warranty express or implied (and whether statutory or otherwise) on the part of the Owner and all of its claims against the Owner howsoever and whatsoever that may arise in respect of the Vessel or the Owner's title thereto, or all of its rights therein or arising out of the operation of the Vessel or the chartering thereof under this Charter (including in respect of the seaworthiness or otherwise of the Vessel).
|
35.8 |
The Charterer agrees that the Owner shall be under no liability to supply any replacement vessel or any piece or part thereof during any period when the Vessel is unusable and shall not be liable to the Charterer or any other person as a result of the Vessel being unusable.
|
35.9 |
Bunkers and luboils
|
35.9.1 |
At delivery the Charterer shall take over all bunkers, lubricating oil, hydraulic oil, greases, water and unbroached stores and provisions in the Vessel without cost assuming that these have remained the property of the Charterer (as seller) under the MOA.
|
35.9.2 |
To the extent that Clause 46.2 applies, at redelivery the Owner shall take over all bunkers, unused lubricating oil, hydraulic oil, greases, water and unbroached provisions and other consumable stores in the said Vessel without cost.
|
36 |
Charter Period
|
36.1 |
The Owner agrees to let and the Charterer agrees to hire the Vessel on the terms and conditions of this Charter for the Charter Period.
|
36.2 |
The Owner hereby covenants and undertakes that unless a Termination Event or a Total Loss has occurred, or that this Charter is terminated by the Charterer in accordance with Clause 45.1, neither the Charterer nor any permitted Sub-Charterer shall be disturbed or interfered with in its quiet and peaceful use, possession and enjoyment of the Vessel (except as otherwise expressly provided for herein).
|
37 |
Fee and Deposit
|
37.1 |
The Charterer shall, within five (5) days after execution of this Charter and in any event prior to the Owner's Funding Date, pay to the Owner a non-refundable handling fee in an amount of United States Dollars Three Hundred Ninety Seven Thousand Five Hundred (US$397,500) (the "
Handling Fee
").
|
37.2 |
The Charterer shall, on or prior to the Delivery Date, pay to the Owner a deposit in an amount not less than United States Dollars One Million Three Hundred Twenty Five Thousand (US$1,325,000) (the "
Deposit
", which shall include any additional payment of deposit from time to time pursuant to the terms hereof) to secure the due observance and performance by the Charterer of its obligations and undertakings herein contained.
|
37.3 |
Notwithstanding the above and without prejudice to any other rights or remedies of the Owner hereunder, the Owner shall have the right to utilise the Deposit to set off against any part of the Balloon Payment or the Termination Sum when the same becomes due and payable in accordance with the terms of this Charter after deducting any penalty or default fine or liquidated damage under the Transaction Documents owed by the Charterer.
|
37.4 |
The Deposit shall be retained by the Owner throughout the Security Period free of any interest to the Charterer and shall be refunded wholly or partly (in the event of any forfeiture in accordance with Clause 37.3 above) by the Owner to the Charterer within five (5) Business Days after the expiration or termination of this Charter provided that all amounts due and payable to the Owner under this Charter have been fully received by the Owner and all other obligations and liabilities of the Charterer hereunder have been fully performed and discharged. Notwithstanding the above, the Owner shall have the right to apply the Deposit to set off against an equivalent amount of the Purchase Option Price or the Purchase Obligation Price or the Termination Sum when the same becomes due and payable in accordance with the terms of this Charter.
|
38 |
Charterhire
|
38.1 |
Upfront Charterhire Payment
|
38.1.1 |
The Charterer shall, on or prior to the Delivery Date, pay to the Owner an upfront Charterhire payment (the "Upfront Charterhire") in an amount being the difference between the Purchase Price and the Charterhire Principal as at the Delivery Date.
|
38.1.2 |
The Owner and the Charterer agree that upon the delivery of the Vessel by the Charterer to the Owner pursuant to the terms of the MOA, the Upfront Charterhire shall be treated as having been fully paid by the Charterer to the Owner under this Clause 38.1.
|
38.1.3 |
In the event that the Market Value is less than US$26,500,000 according to the valuation carried out in accordance with this Charter before the Delivery Date, the Charterhire Principal shall be adjusted downwards on a pro-rata basis.
|
38.2 |
Pre-delivery Charterhire
|
38.3 |
Charterhire
|
38.3.1 |
the Fixed Charterhire;
|
38.3.2 |
the Variable Charterhire; and
|
38.3.3 |
the Balloon Payment (applicable on the Expiry Date).
|
38.4 |
If a Market Disruption Event occurs in relation to any Pre-delivery Charterhire or Charterhire for any Hire Calculation Period, then the Interest Rate for the relevant Hire Calculation Period shall be the rate per annum which is the sum of:
|
38.4.1 |
the Margin; and
|
38.4.2 |
the rate notified to the Charterer by the Owner as soon as practicable and in any event before interest is due to be paid in respect of that Hire Calculation Period, to be that which expresses as a percentage rate per annum the cost to the Owner of funding the Charterhire Principal from whatever comparable source it may select.
|
38.4.3 |
at or about noon (London time) on the Quotation Day for the relevant Hire Calculation Period the relevant rate on pages LIBOR01 of the Reuters screen is not available and none or only one of leading banks in the London interbank market supplies a rate to the Owner to determine LIBOR for dollars for the relevant Hire Calculation Period; or
|
38.4.4 |
before close of business in Shanghai on the Quotation Date for the relevant Hire Calculation Period, the Charterer receives notification from the Owner that the cost to the Owner of funding the Charterhire Principal from whatever source it may reasonably select would be in excess of LIBOR;
|
38.5 |
The Vessel shall not at any time be deemed off-hire and the Charterer's obligation to pay all Pre-delivery Charterhire and Charterhire and other amounts payable under this Charter shall be absolute and unconditional under any and all circumstances and shall not be affected by any circumstances of any nature whatsoever and whether or not similar to any of the matters set out in paragraphs (a) to (e) below, including, without limitation:
|
38.5.1 |
any set-off, counterclaim, recoupment, defence or other right which the Charterer may have against the Owner or any other person for any reason whatsoever;
|
38.5.2 |
the unavailability of the Vessel for any reason, including (but not limited to) any invalidity or other defect in the title, the seaworthiness, condition, design, operation, performance, capacity, merchantability, or fitness for use or eligibility of the Vessel for any particular trade or operation or for documentation under the laws of any country or any damage to the Vessel;
|
38.5.3 |
any incapacity, disability, or defect in powers of the Charterer, or any irregular exercise thereof by, or lack of authority of, any person purporting to act on behalf of the Charterer;
|
38.5.4 |
the hijacking, theft, condemnation, capture, seizure, arrest, detention, confiscation or as more specifically set out in Clause 47.3, Total Loss of the Vessel; or
|
38.5.5 |
any failure or delay on the part of the Owner whether with or without fault on its part, in performing or complying with any of the terms or covenants hereunder; or
|
38.5.6 |
any other causes which, but for this provision, might operate to exonerate the Charterer from liability, whether in whole or in part, under this Charter.
|
38.6 |
Unless otherwise agreed by the Owner in writing or such prepayment is made in accordance with Clause 42.4.2, the Charterer shall have the right to prepay any part of Charterhire Principal on any Payment Date after the second (2
nd
) anniversary of the Delivery Date. In the event the Charterer prepays any part of the Charterhire Principal, the Charterer shall:
|
38.6.1 |
serve the Owner at least twenty (20) Business Days' prior written notice, specifying the proposed date and amount for prepayment (the "
Prepayment Sum
"), which shall be an amount in multiples of United States Dollars One Million only (US$1,000,000); and
|
38.6.2 |
the Prepayment Sum shall be in a minimum amount of United States Dollars One Million only (US$1,000,000); and
|
38.6.3 |
pay to the Owner a prepayment fee in an amount equal to two per cent (2%) of the Prepayment Sum.
|
38.7 |
Notwithstanding anything to the contrary contained in this Charter, all payments by the Charterer hereunder (whether by way of hire or otherwise) shall be made:-
|
38.7.1 |
in case of Charterhire, not later than (subject to 38.7.3 below) the relevant Payment Date;
|
38.7.2 |
in Dollars in immediately available funds for same day value to the Owner Account which shall be duly established on or before the date of this Charter or to such other bank account as may from time to time be notified by the Owner to the Charterer by not less than three (3) Business Days' prior written notice; and
|
38.7.3 |
if any day for the making of any payment hereunder is not a Business Day, the due date for the relevant payment shall be the immediately preceding Business Day.
|
38.8 |
All payments under this Charter shall be made without any set-off or counterclaim whatsoever and free and clear of and without withholding or deduction for, or on account of, any present or future income, freight, stamp and other taxes, levies, imposts, duties, fees, charges, restrictions or conditions of any nature (collectively "
Taxes
"). If the Charterer is so required to make any withholding or deduction from
|
38.9 |
In the event of failure by the Charterer to pay on the due date for payment thereof, or in the case of the sum payable on demand, the date of demand therefor, any hire or other amount payable by it under this Charter, the Charterer shall pay to the Owner on demand default interest on such hire or such other amount from the due date to the date of actual payment (both before and after any relevant judgment or winding up of the Charterer) at the rate of zero point zero five per cent (0.05%) per day. Any interest payable under this Charter shall accrue from day to day and shall be calculated on the actual number of days and shall be payable on demand.
|
38.10 |
Time of payment of the all Pre-delivery Charterhire and Charterhire and other sum payable under this Charter shall be of the essence of this Charter.
|
39 |
Owner's Right of Sale and Mortgage
|
39.1 |
At any time during the Charter Period, if the Owner wishes to transfer the title of the Vessel to a third party, the Owner shall discuss with the Charterer and obtain Charterer's prior consent which shall not be unreasonably withheld or delayed. In the event that the Owner transfers the title of the Vessel to a third party, the Owner shall ensure that the subsequent owner of the Vessel shall enter into a bareboat charter with the Charterer on identical terms of this Charter with logical factual amendments. Any costs or expenses whatsoever arising in relation to the sale of the Vessel by the Owner shall be borne by the Owner.
|
39.2 |
The Charterer hereby agrees and undertakes to enter into any such customary documents as the Owner shall reasonably require in order to complete or perfect the transfer of the title of the Vessel (with the benefit and burden of this Charter) pursuant to Clause 39.1.
|
39.3 |
At all times during the term of this Charter, the Owner shall have the right to create a mortgage or as the case may be, mortgages, over the Vessel in favour of any bank or financial institution (the "
Mortgagee
") and to assign all the rights, title, interests and benefit in and to this Charter and/or all or any Security under the Transaction Documents to the Mortgagee as security for any loan or other facilities for the purpose of financing the acquisition of the Vessel or re-financing of the Vessel. In the event that the Vessel is transferred by the Owner to the Charterer or its nominee in accordance with Clause 45.1 or Clause 45.2 or Clause 46.7, as the case may be, the Owner shall ensure that the mortgage(s) created pursuant to this Clause 39.3 be fully discharged. The Owner undertakes and agrees to use its best efforts to procure from its Mortgagee a fully executed quiet enjoyment letter.
|
39.4 |
The Charterer agrees with the Owner to acknowledge and agree to be bound by, and to ensure that any Sub-Charterer acknowledges and agrees to be bound by, the notice of any assignment of this Charter executed in favour of the Mortgagee in the manner as required by the Mortgagee.
|
40 |
Indemnity
|
40.1 |
The Charterer agrees at all times during this Charter to indemnify and keep indemnified the Owner against:-
|
(a) |
all reasonable costs and expenses incurred by the Owner as a result of its entering into of the Transaction Documents, including without limitation the costs, expenses, fees, attorney fees, charges for legal services, registration of relevant charges, perfection of any securities and others of whatsoever nature arising out of or in connection with this Charter;
|
(b) |
all costs and expenses incurred, including attorney fees, in connection with any Transaction Document or the Vessel, and any costs, charges, or expenses which the Charterer have agreed to pay under this Charter and which shall be claimed or assessed against or paid by the Owner and the Charterer shall bear the cost of registration (the title/ownership registration and bareboat/demise charter registration) of the Vessel with such vessel registry of a Flag State;
|
(c) |
any Taxes (as defined in Clause 38.8) imposed on, or suffered by, the Owner;
|
(d) |
all losses, costs, charges, expenses, fees, attorney fees, payments, liabilities, penalties, fines, damages or other sanctions of a monetary nature (collectively, "
Losses
") suffered or incurred by the Owner and arising directly or indirectly in any manner out of the design, manufacture, delivery, non-delivery, purchase, importation, registration, ownership, chartering, sub-chartering, possession, control, use, operation, condition, maintenance, repair, replacement, refurbishment, modification, overhaul, insurance, sale or other disposal, return or storage of or loss of or damage to the Vessel or otherwise in connection with the Vessel (whether or not in the control or possession of the Charterer) including but not limited to those Losses described in Clause 46.4 and including any and all claims in tort or in contract by a Sub-Charterer of the Vessel from the Charterer or by the holders of any Bills of Lading issued by the Charterer;
|
(e) |
all Losses suffered or incurred by the Owner which result directly or indirectly from claims which may at any time be made on the ground that any design, article or material of or in the Vessel or the operation or use thereof constitutes or is alleged to constitute an infringement of patent or copyright or registered design or other intellectual property right or any other right whatsoever;
|
(f) |
all Losses suffered or incurred by the Owner in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of the Vessel caused by the Charterer, or in securing the release of the Vessel therefrom;
|
(g) |
all Losses suffered or incurred by the Owner with respect to or as a direct result of the presence, escape, seepage, spillage, leaking, discharge or migration from the Vessel of oil or any other hazardous substance, including without limitation, any claims asserted or arising under the US Oil Pollution
|
(h) |
any Losses incurred or suffered by the Owner in liquidating, employing or prepaying funds acquired or borrowed to purchase or finance or refinance the Vessel (including any costs incurred in unwinding any associated interest rate or currency swaps or currency futures) following any default in payment hereunder or the occurrence of any Termination Event.
|
40.2 |
If, under any applicable law, whether as a result of judgment against the Charterer or the liquidation of the Charterer or for any other reason, any payment to be made by the Charterer under or in connection with this Charter is made or is recovered in a currency other than the currency (the "
currency of obligation
") in which it is payable pursuant to this Charter then, to the extent that the payment (when converted into the currency of obligation at the rate of exchange on the date for the determination of liabilities permitted by the applicable law) falls short of the amount unpaid under this Charter, the Charterer shall as a separate and independent obligation, fully indemnify the Owner against the amount of the shortfall; and for the purposes of this sub-clause "rate of exchange' means the best rate at which the Owner is able on the relevant date to purchase the currency of obligation with the other currency.
|
40.3 |
The indemnities contained in this Clause 40, and each other indemnity contained in this Charter, shall survive any termination or other ending of this Charter and any breach by, or repudiation or alleged repudiation by, the Charterer or the Owner of this Charter.
|
40.4 |
All moneys payable by the Charterer under this Clause 40 shall be paid on demand but in any event within ten (10) Business Days after the date of the Owner's demand.
|
41 |
Representations and Warranties
|
41.1 |
The Charterer acknowledges that the Owner has entered into this Charter in full reliance on representations by the Charterer in the following terms, and the Charterer now warrants to the Owner that the following statements are, at the date hereof, and on the Delivery Date will be, true and accurate:-
|
41.1.1 |
each Security Party is a limited liability company or as the case may be, corporation, duly incorporated in good standing and validly existing under the laws of its jurisdiction of incorporation;
|
41.1.2 |
each Security Party has the power to conduct its business as it is now carried on, to own or hold under lease its assets, to execute, deliver and perform its obligations under the Transaction Document to which such Security Party is a party, and all necessary corporate, shareholder's and other actions have been taken to authorise the execution, delivery and performance of such documents;
|
41.1.3 |
each of the Transaction Documents to which a Security Party is a party constitutes the valid and legally binding and enforceable obligations of such
|
41.1.4 |
the entry into and performance by each Security Party of the Transaction Document to which such Security Party is a party does not, and will not during the Security Period, violate in any respect (i) any existing law or regulation of any governmental or official authority or body, or (ii) the constitutional documents of this Security Party, or (iii) any agreement, contract or other undertaking to which this Security Party is a party or which is binding on this Security Party or any of its assets;
|
41.1.5 |
all consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of the Transaction Documents have been obtained and are, or will prior to the Delivery Date be, in full force and effect;
|
41.1.6 |
Governing law and enforcement:
|
(a) |
the choices of (x) German law to govern the Account Pledge and (y) English law to govern the other Transaction Documents to which each Security Party is a party will, in each case, be recognised and enforced in its jurisdiction of incorporation; and
|
(b) |
any arbitration award obtained in Hong Kong in relation to this Charter and other Transaction Documents to which each Security Party is a party will be recognised and enforced in its jurisdiction of incorporation;
|
41.1.7 |
no Security Party is required under the laws of its jurisdiction of incorporation to make any deduction for or on account of tax from any payment it may make under each Transaction Document to which such Security Party is a party;
|
41.1.8 |
under the laws of the jurisdiction of incorporation of each Security Party it is not necessary that any Transaction Document to which such Security Party is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Transaction Documents or the transactions contemplated by the Transaction Documents;
|
41.1.9 |
no litigation, arbitration or administrative proceeding is taking place against any Security Party or against any of the assets of any Security Party which is likely to be adversely determined and, if adversely determined, would have a material adverse effect on such Security Party's ability to perform its obligations under the Transaction Documents to which it is a party;
|
41.1.10 |
(i) no Termination Event, and no event which with the giving of notice and/or lapse of time and/or relevant determination would constitute a Termination Event, has occurred and is continuing; and (ii) no other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on any Security Party or any of
|
41.1.11 |
any information, exhibits and reports furnished by the Charterer to the Owner are true and accurate in all material respects and not misleading, do not omit material facts and there are no other facts the omission of which would make any fact or statement therein misleading;
|
41.1.12 |
none of the Security Parties nor any of its assets has any right to immunity from set-off, legal proceedings, attachment prior to judgment, other attachment or execution of judgment on the grounds of sovereign immunity or otherwise;
|
41.1.13 |
each Security Party has complied with all Tax laws and regulations applicable to it and its business and there are no tax claims commenced or threatened to commence against any Security Party;
|
41.1.14 |
none of the Security Parties is insolvent or in liquidation or administration or subject to any other formal or informal insolvency procedure, and no receiver, administrative receiver, administrator, liquidator, trustee or analogous officer has been appointed in respect of any Security Party or all or any part of its assets;
|
41.1.15 |
the Charterer has not undertaken any business other than in the ordinary course of its business of owning, operating, pooling and chartering the Vessel or as otherwise disclosed to the Owner on or prior to the date of this Charter;
|
41.1.16 |
the Charterer is wholly owned directly or indirectly by the Guarantor unless otherwise permitted by the Owner (such permission not to be unreasonably withheld or delayed);
|
41.1.17 |
there will not be any agreement or arrangement whereby the Earnings may be shared howsoever with any other person;
|
41.1.18 |
none of the Earnings, Insurances or compensation for Requisition or the Charterer Account nor any other properties or rights which are, or are to be, the subject of any of the Transaction Documents nor any part thereof will be subject to any Encumbrances except under the Transaction Documents; and
|
(a) |
the Original Financial Statements were prepared in accordance with the relevant GAAP consistently applied;
|
(b) |
the Original Financial Statements fairly represent the financial condition of the Charterer and the Guarantor as at the end of the relevant financial year and operations during the relevant financial year; and
|
(c) |
there has been no material adverse change in the business or financial condition of the Charterer or the Guarantor since the date on which the relevant Original Financial Statements were drawn up;
|
41.1.20 |
Sanctions
|
(a) |
none of the Security Parties nor any of their respective subsidiaries, nor any of their respective directors, officers, employees, agents, affiliates or representatives (each a "Person") is a Restricted Party or an individual or entity currently the subject of any Sanctions, nor is any Security Party, any of their respective subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions.
|
(b) |
each Security Party has conducted and does conduct its business in compliance with all applicable laws and regulations relating to anti-money laundering and counter-terrorism financing and there has been and there is no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving it with respect to any applicable laws and regulations relating to anti-money laundering and counter-terrorism financing and no such actions, suits or proceedings are threatened or contemplated against it.
|
41.2 |
Environmental matters
|
41.2.1 |
the Charterer and the Operator and their respective Environmental Affiliates have each complied with the provisions of all Environmental Laws in relation to the Vessel;
|
41.2.2 |
the Charterer and the Operator and their respective Environmental Affiliates have each obtained all Environmental Approvals in relation to the Vessel and are in compliance with all such Environmental Approvals;
|
41.2.3 |
no Environmental Claim has been made or threatened or pending against the Charterer, the Operator or, to the best of their knowledge and belief (having made due enquiry), any of their respective Environmental Affiliates in respect of an amount exceeding United States Dollars Five Hundred Thousand (US$500,000); and
|
41.2.4 |
there has been no Environmental Incident which has resulted in a claim in respect of an amount exceeding United States Dollars Five Hundred Thousand (US$500,000).
|
41.3 |
Other than Clauses 41.1.7 and 41.1.8, the representations and warranties contained in Clause 41.1 and 41.2 shall be deemed to be repeated by the Charterer on each day from the date of this Charter during the Security Period as if made with
|
42 |
Undertakings
|
42.1 |
The Charterer hereby undertakes to the Owner that it will comply in full and procure compliance (where applicable) with the following undertakings throughout the Security Period unless otherwise permitted by the Owner:
|
42.1.1 |
each Security Party will maintain its corporate existence as a body corporate duly organised and validly existing under the laws of its jurisdiction of incorporation;
|
42.1.2 |
each Security Party will pay all Taxes applicable to, or imposed on or in relation to, such Security Party or its business;
|
42.1.3 |
the Charterer will not conduct any business or activity other than the chartering, pooling and operation of vessels and other ancillary activities;
|
42.1.4 |
except for the Financial Indebtedness under this Charter, the Charterer will not incur or agree to incur or issue any Financial Indebtedness, nor make any commitments, other than those occurring in the ordinary course of trading the vessels or in the ordinary course of running their business;
|
42.1.5 |
any member's advances and all intercompany loans from time to time granted by any other member of the Group to the Charterer (i) are and shall be subordinated in all respects to all amounts owing and which may in future become owing by the Charterer under the Transaction Documents; (ii) are and shall remain unsecured by any Encumbrance over the whole or any part of the assets of the Charterer; and (iii) are not and shall not be capable of becoming subject to any right of set-off or counterclaim;
|
42.1.6 |
except for (i) the Permitted Maritime Liens and (ii) the Security in favour of the Owner or otherwise with the prior written consent of the Owner, the Charterer will not create or permit to subsist any Security or other third party rights over any of its present or future assets or undertakings, nor dispose of any those assets or of all or part of that undertaking;
|
42.1.7 |
without limiting the generality of paragraph (f) above, the Charterer shall ensure that the Vessel shall be free and clear of all Security other than those (i) arising under the operation of law, or (ii) created by or on the instructions of the Owner, or (iii) under the Finance Documents;
|
42.1.8 |
the Guarantor remains at all times as the ultimate majority legal and beneficial shareholder controlling directly or indirectly of no less than one hundred per cent (100%) of the shares of and voting rights in the Charterer;
|
42.1.9 |
the Charterer will supply and procure that the Guarantor (each of the Charterer and the Guarantor, a "Notifying Party") or cause to be supplied to the Owner:
|
(a) |
as soon as the same become available but in any event within one hundred and eighty (180) days after the end of each of its financial years, the audited, consolidated annual financial statements of each Notifying Party for that financial year; and
|
(b) |
as soon as the same become available but in any event within ninety (90) days after the end of each of its financial quarters, the unaudited quarterly financial statements of each Notifying Party for that financial quarter;
|
(a) |
certified by a director or the chief financial officer of the relevant Notifying Party as fairly representing its financial condition as at the date at which those financial statements were drawn up; and
|
(b) |
prepared using the relevant GAAP;
|
42.1.10 |
the Charterer will provide to the Owner as per Owner's request (acting reasonably):
|
(a) |
promptly upon request by the Owner, copies of all class records, class certificates and survey reports and copies of all management reports, in a form and substance acceptable to the Owner;
|
(b) |
promptly upon request by the Owner, all such information regarding the Vessel, compliance with the ISM Code, the ISPS Code and Annex VI (Regulation for the Prevention of Air Pollution from Ships) to MARPOL, the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001;
|
(c) |
promptly upon request by the Owner, a written report on the condition of the Vessel prepared by or on behalf of the Charterer in a form acceptable to the Owner; and
|
(d) |
promptly upon request by the Owner, such further information in the possession or control of the Charterer and/or any other Security Party with respect to the financial condition and operations of the Charterer and/or such Security Party.
|
42.1.11 |
the Charterer will, at all times, in respect of the Vessel:
|
(a) |
on the Delivery Date, by way of title and/or demise charter registration with the name of the Owner as the owner, register
|
(b) |
ensure that the Vessel is classified and maintained in the highest class (free of outstanding recommendations or conditions of class on the Delivery Date) or such other class as the Owner may, at the request of the Charterer, agree in writing (which shall not be unreasonably withheld or delayed), with the classification society indicated in Box 10 of Part I of this Charter (or with such other classification society as shall be acceptable to the Owner and any mortgagee) (the "
Classification Society
"), and comply with the rules and regulations of the Classification Society;
|
(c) |
ensure compliance with all applicable environmental laws and all other laws and regulations relating to the Vessel and the operation and management thereof, and take all reasonable precautions to ensure that the Operator, the crews, employees, agents or representatives of the Charterer at all times comply with such environmental laws and other applicable laws;
|
(d) |
ensure that the Vessel is in possession of a valid Safety Management Certificate, a valid International Ship Security Certificate and an International Air Pollution Prevention Certificate and in all respects in compliance with all applicable international conventions, codes and regulations, including without limitation the International Convention for Safety of Life at Sea (SOLAS) 1974 (as adopted, amended or replaced from time to time), the ISM Code and the ISPS Code, and ensure such compliance by the Operator and that the Operator shall be in possession of a Document of Compliance appropriate for the Vessel and Annex VI (Regulations for the Prevention of Air Pollution from Ships) to MARPOL and a certificate issued pursuant to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001;
|
(e) |
make such quarterly voyage declarations as may be required in accordance with all applicable insurance conditions especially in order to maintain insurance cover for trading in and to the United States of America and the Exclusive Economic Zone (as defined in the US Oil Pollution Act of 1990 (as may be amended and/or re-enacted from time to time hereafter));
|
(f) |
obtain in a timely manner, if the Vessel at any time shall call on any US port, in accordance with the regulations of the US Oil Pollution Act 1999 (as may be amended and/or re-enacted from time to time) and in line with the requirements of the US Coast Guard, a Certificate of Financial Responsibility (C.O.F.R), a copy of which shall promptly be provided to the Owner;
|
(g) |
assure its performance of the obligations under any Sub-Charter;
|
42.1.12 |
the Charterer will obtain and promptly renew from time to time and, whenever so required, promptly furnish certified copies to the Owner of all such authorisations, approvals, consents and licences as may be required under any applicable law or regulation to enable the Security Party to perform its obligations under the Transaction Documents to which it is a party or required for the validity or enforceability of the Transaction Documents to which it is a party, and the Security Party shall in all material respects comply with the terms of the same;
|
42.1.13 |
the Charterer will notify the Owner in writing of any Termination Event or any event or circumstances of which they are aware and which, with the giving of notice and/or lapse of time or other applicable condition, may constitute a Termination Event;
|
42.1.14 |
the Charterer will permit the Owner to inspect or survey the Vessel or instruct a duly authorised surveyor to carry out such survey on its behalf in order to ascertain the condition of the Vessel and to inspect copies of the Vessel's logs and records certified as true by the Vessel's master at any reasonable time or times upon giving a written notice to the Charterer; provided that the Owner shall not prevent, hinder or delay the normal operation of the Vessel. The Charterer shall bear the cost of such inspections including without limitation the fees of any surveyor once a year for any inspections carried out by the Owner or at any time when a Termination Event occurs. The Charterer shall afford all proper facilities for such inspections and give the Owner reasonable advance notice of any intended dry-docking of the Vessel;
|
42.1.15 |
Sanctions
|
(a) |
none of the Security Parties or any of their Subsidiaries will directly or indirectly (A) use the proceeds of the transaction contemplated by the Transaction Documents, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person (aa) to fund any activities of or business with any Person the subject of Sanctions or any Restricted Party or (bb) to fund any activities or business in any country or territory, that, at the time of such funding, is the subject of Sanctions, (B) permit the use or operation of the Vessel in any country or territory that at such time is the subject of Sanctions or (C) conduct any business activity with any Restricted Party or in any other manner that will result in any Person, any Finance Party or any other person participating in the transaction (whether as underwriter,
|
(b) |
the processing of the transactions contemplated by the Transaction Documents by any Security Party will not breach any Sanctions or any laws and regulations relating to counter-terrorism financing or economic and trade sanctions applicable to it. The Charterer undertakes to comply in all respects with all applicable laws and regulations relating to anti-money laundering and counter-terrorism financing;
|
(c) |
none of the Security Parties will permit the use or operation of the Vessel in any country or territory that at such time is the subject of Sanctions;
|
42.1.16 |
Sub-Charter
|
(a) |
a time charter or a contract of affreightment in form and substance satisfactory to the Owner shall be entered into between the Charterer as disponent owner and a Sub-Charterer prior to the Delivery Date. If the Charterer will sub-let the Vessel by time charter, (A) the term of such time charter shall not be less than twenty (24) months or (B) the initial term of such time charter shall not be less than twelve (12) months which may be extended by twelve (12) months by virtue of Charterer's option contained in such time charter;
|
(b) |
the rate of the hire payable under a Sub-Charter shall be an amount not less than one hundred ten per cent (110%) of the aggregate of the Charterhire payable on a Payment Date and all operating expenses of the Vessel; and
|
(c) |
if the Charterer fails to enter into a Sub-Charter in accordance with paragraphs (i) and (ii) above, the Charterer shall, on or prior to the Delivery Date, provide a cash deposit in an amount not less than United States Dollars One Million Three Hundred Twenty Five Thousand (US$1,325,000)]. Such deposit shall be retained by the Charterer in the Charterer Account or Alpha Bank and provided no Termination Event or Total Loss has occurred, shall be released to the Charterer after the second (2
nd
) anniversary of the Delivery Date or if earlier, a Sub-Charter in form and substance acceptable to the Owner is available.
|
42.2 |
The Charterer undertakes and agrees that throughout the Security Period it will not, without prior written approval (which shall not be unreasonably withheld or delayed) of the Owner:-
|
42.2.1 |
repudiate or terminate any Sub-Charter or the Management Agreement (unless a replacement has been agreed by the Approved Manager) or amend or vary the terms of, or permit or suffer any amendment or variation of the terms of any Sub-Charter or the Management Agreement;
|
42.2.2 |
enter into any charter or other contract for the employment of the Vessel for a term which exceeds or which by virtue of any optional extensions contained in it might exceed 12 months' duration (other than a Sub-Charter);
|
42.2.3 |
sell, transfer, assign, create security or option over, pledge, abandon, lend or otherwise dispose of or cease to exercise direct control over its present or future undertakings, assets, rights or revenues (otherwise than by security, transfers, sales or disposals for full consideration in the ordinary course of business as a ship owner, operator and manager) whether by one or a series of transactions related or not;
|
42.2.4 |
merge or consolidate with any other person or enter into any form of amalgamation, reconstruction or reorganisation;
|
42.2.5 |
make any substantial change to the general nature of its business from that carried on at the date of this Charter;
|
42.2.6 |
cease or threaten to cease, to carry on all or any, in the reasonable opinion of the Owner, material part of its business;
|
42.2.7 |
permit any change in the composition of its board of directors from that existing on the date of this Charter;
|
42.2.8 |
make any change in the legal or beneficial ownership of the Charterer; or
|
42.2.9 |
appoint a ship manager other than the Approved Manager or manage the Vessel itself.
|
42.3 |
In the event not due to the fault of the Owner the Vessel is arrested or detained at any time in any jurisdiction by any person having or purporting to have a claim against or any interest in the Vessel or the bunker of the Vessel, the Charterer shall within 60 days of such arrest or detention resolve such arrest or detention by way of provision of guarantee or security for costs (whether by the Charterer or its protection and indemnity association or otherwise) or by such other means necessary to ensure the Vessel is released from such arrest or detention and available for operation. If the Charterer fails to procure the release of the Vessel within 60 days (or such longer period as the Owner shall agree in the light of all the circumstances), without prejudice to the Owner's right under Clause 44.1.9, the Owner and the Charterer are obliged to enter into immediate discussion to evaluate the situation, and the Owner may, and shall be entitled to, request the Charterer to provide such deposit or security as the Owner deems sufficient to guarantee or secure the release of the Vessel from such arrest or detention.
|
42.4 |
In the event that during the Charter Period, the Market Value of the Vessel is less than 120% of the then current Charterhire Principal minus the amount of the Deposit held by the Owner and the Charterer's Deposit maintained by the Charterer at relevant time (the "Value Maintenance Ratio"), the Charterer shall, not later than ten (10) Business Days from the demand by the Owner, either:-
|
42.4.1 |
provide a cash deposit or such other additional security which, in the opinion of the Owner has a market value sufficient to enable compliance with the
|
42.4.2 |
prepay such part of the Charterhire Principal,
|
42.5 |
In the event that the Charterer prepays the Outstanding Charterhire Principal in accordance with Clause 42.4, such prepayment of the Outstanding Charterhire Principal shall be applied in the order of maturity of the Fixed Charterhire set out in Schedule 1 (
Fixed Charterhire Payment Table
).
|
43 |
Insurances, Total Loss
|
43.1 |
The Charterer undertakes to the Owner that throughout the Charter Period:-
|
43.1.1 |
all insurances to be effected by the Charterer pursuant to Box 29 and Box 31 (if any) of Part I and clause 13 of Part 2 of this Charter shall be effected and maintained by the Charterer;
|
(a) |
in the joint names of the Mortgagee (if any), the Owner and the Charterer (or as the Owner and the Charterer may otherwise agree);
|
(b) |
in an amount of marine and war risks cover set out in Clause 43.2 (or such other amount as the Owner and the Charterer may agree with from time to time);
|
(c) |
that the protection and indemnity risks include (A) FD&D cover, and (B) in the case of oil pollution liability risks, cover for an aggregate amount equal to the highest level of cover available from time to time under the basic P&I Club entry policy and the coverage amount shall not be less than US$1,000,000,000;
|
(d) |
upon such terms and by policies and/or entries in such forms as shall from time to time be approved in writing by the Owner; and
|
(e) |
through such brokers (the "
approved brokers
") and with such insurance companies, underwriters, war risks and protection and indemnity associations (the "
approved insurers
") as shall, in each case, from time to time be approved in writing by the Owner;
|
43.1.2 |
all such insurances shall be renewed by the Charterer at least seven (7) days before the relevant policies or contracts expire and the approved brokers and/or the approved insurers shall promptly confirm in writing to the Owner as and when each of such renewals is effected and, in the event of any renewal not being effected by the Charterer as aforesaid, shall notify the Owner forthwith;
|
43.1.3 |
if any of the Insurances form part of a fleet cover, to obtain insurers' agreement not to cancel the insurances for reason of non-payment of premiums for other vessels under such fleet cover or of premiums for such other insurances, and, only to the extent allowed under the relevant terms of the Insurances, to obtain insurers' undertaking to the Owner that it shall neither set-off against any claims in respect of the Vessel any premiums due in respect of other vessels under such fleet cover or any premiums due for other insurances;
|
43.1.4 |
the Charterer shall pay punctually all premiums, calls, contributions or other sums payable in respect of all such insurances and produce all relevant receipts when so required by the Owner;
|
43.1.5 |
if and when so required by the Mortgagee, the Charterer shall pay the Mortgagee direct or reimburse the Owner (in case the Owner pays) the cost (as conclusively certified by the Mortgagee) of (A) a mortgagee's interest insurance on the Vessel in an amount not less than one hundred twenty per cent (120%) of the Charterhire Principal or such lesser amount as may be approved by the Mortgagee; and (B) a mortgagee's interest insurance - additional perils (pollution) on the Vessel in an amount not less than one hundred twenty per cent (120%) of the Charterhire Principal or such lesser amount as may be approved by the Mortgagee, and in each case, upon such terms as shall from time to time be approved in writing by the Mortgagee;
|
43.1.6 |
if and when so required by the Owner, the Charterer shall pay the Owner the cost (as conclusively certified by the Owner) of Innocent Shipowner's Interest Insurance on the Vessel in an amount not less than one hundred twenty per cent (120%) of the Charterhire Principal or such lesser amount as may be approved by the Owner; and (B) an Innocent Shipowner's Interest insurance - additional perils (pollution) on the Vessel in an amount not less than one hundred twenty per cent (120%) of the Charterhire Principal or such lesser amount as may be approved by the Owner, and in each case, upon such terms as shall from time to time be approved in writing by the Owner;
|
43.1.7 |
loss of hire in such amounts and upon such terms as shall from time to time be approved in writing by the Owner as may be required by the Mortgagee;
|
43.1.8 |
if and when so required by the Owner from time to time, the Charterer shall pay the Owner the cost (as conclusively certified by the Owner) of any other insurances (including without limitation, Kidnap and Ransom Insurance and additional war risk insurances), as may be recommended by the firm of insurance broker or the firm of insurance consultant who will issue the insurance report to the Owner, in such amounts and upon such terms as shall from time to time be approved in writing by the Owner;
|
43.1.9 |
the Charterer shall arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity or war risks association;
|
43.1.10 |
the Charterer shall ensure that the policies and/or entries in respect of the insurances against marine and war risks are, in each case, endorsed with the interest of the Owner to the effect that:
|
(a) |
payment of a claim for a Total Loss of the Vessel will be made to the Owner;
|
(b) |
payment of a claim in respect of any one casualty where the aggregate claim against all insurers does not exceed the Major Casualty Amount, subject to the provision hereto, be made to the Charterer who shall apply the same to make good the loss and fully repair all damage and otherwise maintaining the Vessel in accordance with its obligations hereunder provided however that all such sums shall be payable as aforesaid only until such time as the Owner may otherwise direct to the contrary following a Termination Event whereupon all such sums shall be paid to the Owner or to any Mortgagee in its capacity as the Owner's assignee;
|
(c) |
payment of a claim in respect of any one casualty where the aggregate claim against all insurers exceeds the Major Casualty Amount prior to adjustment for any franchise or deductible under the terms of the relevant policy shall be payable directly to the Owner unless the Owner has, by prior written consent, agreed for such claim to be paid to the Charterer as and when the Vessel is restored to her former state and condition and the liability in respect of which the insurance loss is payable is discharged, and provided that the insurers may with such consent make payment on account of repairs in the course of being effected.
|
43.1.11 |
the Charterer shall ensure that the entries in respect of protection and indemnity risks provide for moneys payable thereunder to be paid (unless and until the Owner shall, following the occurrence of any Termination Event, direct that they shall be paid to the Owner) either:
|
(a) |
to the person who incurred the liability in respect of which the relevant money was paid; or
|
(b) |
to the Charterer in reimbursement for any payment properly made by the Charterer to a third party;
|
43.1.12 |
the Charterer shall ensure that duplicates of all cover notes, policies and certificates of entry are furnished to the Owner for its approval and custody. The Charterer shall procure that the relevant approved brokers or the approved insurers give to the Owner such information as to the Insurances taken out or being or to be taken out in compliance with the Charterer's obligations under the foregoing provisions or as to any other matter which may be relevant to the Insurances as the Owner may request.;
|
43.1.13 |
the Charterer shall ensure that the interest of the Owner as owner of the Vessel and/or any assignee of the Owner in respect of Owner's interest in the insurances shall be recorded on all policies and shall be confirmed to the
|
43.1.14 |
the Charterer shall not do any act or permit or suffer any act to be done whereby any insurance required as aforesaid shall or may be suspended, impaired or become defective;
|
43.1.15 |
at the cost of the Charterer, the Charterer shall furnish the Owner prior to the Delivery Date and at any time when there is any change to the form of any policy issued in respect of the Vessel, a report signed by an independent firm of marine insurance brokers or an independent firm of international reputable insurance consultant appointed by the Charterer and acceptable to the Owner dealing with the Insurances maintained on the Vessel and stating the opinion of such firm as to the adequacy thereof;
|
43.1.16 |
the Charterer shall do all things necessary and provide all documents, evidence and information to enable the Owner to collect or recover any moneys which shall at any time become due to them in respect of the Insurances;
|
43.1.17 |
the Charterer shall not employ the Vessel or suffer the Vessel to be employed otherwise than in conformity with the terms of the instruments of insurance aforesaid (and in particular the ones covering war risks) (including any warranties express or implied therein), without first obtaining the consent of the insurers to such employment and complying with such requirements as to extra premium or otherwise as the insurers may prescribe;
|
43.1.18 |
the Charterers shall not settle, compromise or abandon any claim under or in connection with any of the Insurances (other than a claim of less than the Major Casualty Amount arising other than from a Total Loss) without the prior written consent of the Owner;
|
43.1.19 |
the Charterer shall apply all such sums received in respect of the Insurances in accordance with the terms of Clause 43.1 for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance moneys shall have been received; and
|
43.1.20 |
the Charterer shall not make any alteration to any of the insurances referred to in this Clause 43 without prior written approval by the Owner and shall not make, do, consent or agree to any act or omission which might render any such instrument of insurance invalid or unenforceable or render any sum payable thereunder repayable in whole or in part,
|
43.2 |
Notwithstanding anything to the contrary contained in this Charter, the Vessel shall be kept insured throughout the Charter Period in respect of marine and war risks on hull and machinery basis (as opposed to increased value or total loss only basis) for an amount not less than one hundred twenty per cent (120%) of the then current Charterhire Principal.
|
43.3 |
Notwithstanding anything to the contrary contained in this Charter, if the Vessel shall become a Total Loss:
|
43.3.1 |
the Charterhire shall continue to be payable from the date of occurrence of the Total Loss as set out in Clause 43.4 (the "Total Loss Date") until all sums due under 43.3.2 below have been paid in full;
|
43.3.2 |
the Charterer shall within 30 days from the Total Loss Date and no later than the actual date the insurance proceeds are received from the relevant insurer as a result of such Total Loss, whichever occurs earlier, pay to the Owner the amount equal to the Termination Sum and any other amount due and payable by the Charterer hereunder;
|
43.3.3 |
the Charter Period will end and the obligation of the Charterer to pay Charterhire shall cease on the date on which all sums due under 43.3.2 above have been received by the Owner.
|
43.4 |
For the purposes of this Charter:
|
43.4.1 |
an actual Total Loss of the Vessel shall be deemed to have occurred at the actual date and time the Vessel was lost but, in the event of the date of the loss being unknown, then the actual total loss shall be deemed to have occurred on the date on which the Vessel was last reported;
|
43.4.2 |
a constructive Total Loss shall be deemed to have occurred at the date and time when a notice of abandonment of the Vessel is given to the insurers of the Vessel for the time being (hereinafter called the "Insurers") (provided a claim for such constructive Total Loss is admitted by the Insurers) or, if the Insurers do not admit such a claim, at the date and time at which a constructive Total Loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred; and either the Owner or the Charterer shall have the right to determine whether or not a case has arisen for the giving of notice of abandonment and the Charterer is hereby irrevocably authorised by the Owner to give the same if it so determines. Each of the Owner and the Charterer, upon the request of the other, shall promptly execute such documents as may be required to enable the other to
|
43.4.3 |
a compromised, agreed or arranged Total Loss shall be deemed to have occurred on the effective date of the relevant compromise, agreement or arrangement; and
|
43.4.4 |
a Total Loss (i) as the result of capture, taking, arrest, seizure, restraint, molestation, detention, confiscation or expropriation occurring under the conditions of the "War Risks" policy of the Vessel or (ii) as a result of Requisition, shall be deemed to have occurred at the expiry of one (1) month after the date the assured has given notice of abandonment to the insurers.
|
43.5 |
BIMCO Piracy Clause 2009 as amended
|
43.5.1 |
The Vessel shall not be obliged to proceed or required to continue to or through, any port, place, area or zone, or any waterway or canal (hereinafter "Area") which, in the reasonable judgement of the master and/or the Owner, is dangerous to the Vessel, her cargo, crew or other persons on board the Vessel due to any actual, threatened or reported acts of piracy and/or violent robbery and/or capture/seizure (hereinafter "Piracy"), whether such risk existed at the time of entering into this Charter or occurred thereafter. Should the Vessel be within any such place as aforesaid which only becomes dangerous, or is likely to be or to become dangerous, after her entry into it, she shall be at liberty to leave it. Notwithstanding to the above, the Charterer may request the Vessel to proceed or require the Vessel to continue to or through the Area, provided that the Vessel is carrying sufficient armed guard or under any other circumstances each to the satisfactory to the Owner during the whole navigation within the Area at the sole risks and costs of the Charterer. The charterer shall indemnify and hold the Owner harmless in respect of any loss, damage, expense or liability incurred arising out of or in relation to this clause.
|
43.5.2 |
If in accordance with 43.5.1 the Owner decides that the Vessel shall not proceed or continue to or through the Area they must immediately inform the Charterer;
|
43.5.3 |
If the Owner consents or if the Vessel proceeds to or through an Area exposed to the risk of Piracy the Charterer shall:
|
(a) |
take reasonable preventative measures to protect the Vessel including but not limited to re-routeing within the Area, proceeding in convoy, using escorts, avoiding day or night navigation, adjusting speed or course, or engaging security personnel or equipment on or about the Vessel;
|
(b) |
comply with the orders, directions or recommendations of any underwriters who have the authority to give the same under the terms of the insurance;
|
(c) |
comply with all orders, directions, recommendations or advice given by the Government of the Nation under whose flag the Vessel sails, or other Government to whose laws the Owner is subject, or any other Government, body or group, including military authorities, whatsoever acting with the power to compel compliance with their orders or directions; and
|
(d) |
comply with the terms of any resolution of the Security Council of the United Nations, the effective orders of any other Supranational body which has the right to issue and give the same, and with national laws aimed at enforcing the same to which the Owner is subject, and to obey the orders and directions of those who are charged with their enforcement;
|
43.5.4 |
Costs
|
(a) |
If the Vessel proceeds to or through an Area where due to risk of Piracy additional costs will be incurred including but not limited to additional personnel and preventative measures to avoid Piracy, such costs shall be for the Charterer's account. Any time lost waiting for convoys, following recommended routeing, timing, or reducing speed or taking measures to minimise risk, shall be for the Charterer's account and the Vessel shall remain on hire;
|
(b) |
If the underwriters of the Insurances require additional premiums or additional insurance cover is necessary because the Vessel proceeds to or through an Area exposed to risk of Piracy, then Charterer shall pay such additional Insurance costs and evidence of payment shall be provided to the Owner;
|
(c) |
All payments arising under paragraph (d) shall be settled by the Charterer and evidence of payment shall be provided to the Owner.
|
(d) |
If the Vessel is attacked by pirates, any time lost shall be for the account of the Charterer and the Vessel shall remain on hire.
|
(e) |
If the Vessel is seized by pirates, the Charterer shall keep the Owner closely informed of the efforts made to have the Vessel released.
|
43.6 |
War Risks
|
43.6.1 |
The Vessel shall not be required, without the prior consent of the Owner, to enter any port, place, or zone that is involved in a state of war, warlike operations, or hostilities, civil war, civil strife, rebellion, or piracy, whether there be a declaration of war or not, where it might reasonably be expected to be subject to capture, seizure or arrest, or to a hostile act by a
|
43.6.2 |
If such consent is given by the Owner, the Charterer shall pay any additional cost of insuring the Vessel against hull war risks in an amount not less than one hundred twenty per cent (120%) of the Charterhire Principal or the insured value under its ordinary hull policy. In addition, the Owner may, in its sole discretion, purchase war risk insurance on ancillary risks such as loss of hire, freight disbursements, total loss, kidnap or ransom etc., if it carries such insurance for ordinary marine hazards. The additional costs of such ancillary insurances shall be for Charterer's account. If such insurance is not obtainable commercially or through a government program, the Vessel shall not be required to enter or remain at any such port, place, or zone.
|
44 |
Termination Events
|
44.1 |
Each of the following events shall be a "Termination Event" for the purposes of this Charter:-
|
44.1.1 |
any Pre-delivery Charterhire or Charterhire or the Deposit or the Handling Fee or any other sum payable by a Security Party under a Transaction Document to which it is a party is not paid when due or, if payable on demand, within five (5) Business Days following the date of demand therefor; or
|
44.1.2 |
a Security Party fails to observe or perform any of its other obligations under a Transaction Document to which it is a party and/or the Insurances; or
|
44.1.3 |
any representation or warranty of a Security Party in connection with a Transaction Document or in any document or certificate furnished to the Owner in connection herewith or therewith is untrue, inaccurate or misleading in any material respect, when made or deemed made; or
|
44.1.4 |
a petition shall be presented or an order is made or an effective resolution is passed for the administration or winding-up or bankruptcy, as the case may be, of any Security Party or an administrator or other receiver is appointed in respect of the whole or any substantial part of the property, undertaking or assets of any Security Party or an administrator of any Security Party is appointed or anything analogous to any of the foregoing occurs under the laws of the place of incorporation of such Security Party. However, in the case of a petition no Termination Event shall occur if such petition is frivolous and such petition or order is defended in good faith and appropriate steps and is withdrawn within a period of 2 months; or
|
44.1.5 |
any Security Party stops payments generally or ceases to carry on or suspends all or a substantial part of its business or is unable to pay its debts, or admits in writing its inability to pay its debts, as they become due or shall otherwise become or be adjudicated insolvent; or
|
44.1.6 |
without the prior consent of the Owner (such consent not to be unreasonably withheld or delayed), there occurs a change in the ownership of the Charterer; or
|
44.1.7 |
without the prior consent of the Owner, the Charterer ceases to be 100% directly or indirectly and beneficially owned by the Guarantor; or
|
44.1.8 |
a Security Party ceases or threatens to cease, to carry on all or, in the opinion of the Owner, any material part of its business; or
|
44.1.9 |
the Vessel is arrested or detained (other than for reasons solely attributable to the Owner) and is not discharged in accordance with Clause 42.3 within 60 days after such arrest or detention (or such longer period as the Owner shall agree in the light of all the circumstances); or
|
44.1.10 |
any declared default arises in respect of any financial or other obligation from time to time entered into or assumed by any Security Party, in the case of the Guarantor, provided that such default is of an amount in excess of United States Dollars Five Million (US$5,000,000); or
|
44.1.11 |
any event or series of events occurs which, in the reasonable opinion of the Owner, may have a material adverse effect on the ability of a Security Party's to comply with its obligations under any Transaction Document to which it is a party; or
|
44.1.12 |
any declaration of bankruptcy or any statement to the effect that a Security Party's is insolvent is made by such Security Party, by a legal representative of such Security Party or, in any proceedings, by a lawyer or auditors who are acting on behalf of such Security Party as having been duly authorised by such Security Party to do so; or
|
44.1.13 |
a liquidator, receiver, administrative receiver or similar officer is appointed over the whole or any material part of the assets, rights or revenues of a Security Party or, if the whole or a substantial part of the assets of a Security Party shall be seized or sequestrated by any governmental or other public authority or, if a Security Party shall be restrained from using the whole or a substantial part of its assets in its business; or
|
44.1.14 |
any Management Agreement is repudiated, terminated or cancelled without consent of the Owner or it becomes unlawful for the Approved Manager to perform its obligations under a Transaction Document to which it is a party, or the Approved Manager is in material breach of its obligations under the Manager's Undertaking and (i) within a period of 14 Business Days after service of notice on it by the Owner (with copy to the Charterer) requiring it to remedy the breach, the Approved Manager has not cured its default or (ii) within a period of 14 Business Days after service of notice on the Charterer by the Owner requiring it to change the Approved Manager, the Charterer has failed to do so; or
|
44.1.15 |
any of the Transaction Documents shall at any time and for any reason become invalid or unenforceable or otherwise cease to remain in full force and effect; or
|
44.1.16 |
any consent, authorisation, licence or approval necessary for a Transaction Document to be or remain the valid and legally binding obligations of a Security Party, or to enable a Security Party to perform its obligations hereunder or thereunder, is adversely modified or is not granted or is revoked, suspended, withdrawn or terminated or expires and is not renewed; or
|
44.1.17 |
it becomes impossible or unlawful at any relevant time for any Security Party to enter into or be party to a Transaction Document, or to fulfil any of the covenants and obligations expressed to be assumed by it in any of the Transaction Documents or for the Owner to exercise the rights or any of them vested in it under any of the Transaction Documents and unless not permitted by relevant applicable laws, within a period of 10 Business Days after service of notice on it by the Owner (with copy to the Charterer) requiring it to remedy the breach, the relevant Security Party has not cured its default ; or
|
44.1.18 |
a Security Party repudiates any of the Transaction Documents to which it is a party or does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Transaction Documents to which it is a party; or
|
44.1.19 |
the Charterer or, as the context may require, any other person fails to obtain and/or maintain the Insurances for the Vessel or if any insurer in respect of such Insurances cancels the Insurances or disclaims liability by reason, in either case, of mis-statement in any proposal for the Insurances or for any other failure or default on the part of the Charterer or any other person or the Charterer commit any breach of or omits to observe any of the obligations or undertakings expressed to be assumed by it under Clause 43; or
|
44.1.20 |
the occurrence of any other event or circumstances which, pursuant to the terms hereof or at law, entitles the Owner to terminate this Charter.
|
44.2 |
The occurrence of a Termination Event shall entitle the Owner by notice to the Charterer to terminate this Charter forthwith and recover any and all amounts due and payable hereunder and/or resulting from such termination in the manner as set out in Clause 46.
|
44.3 |
The Owner shall not be under any liability whatsoever to the Charterer for loss or damage whatsoever occasioned by the Charterer for the termination of this Charter pursuant to Clause 44.2, and the Charterer shall indemnify the Owner on demand for any and all liabilities, losses, costs and expenses incurred by the Owner pursuant to this Clause or otherwise resulting from the occurrence of a Termination Event.
|
45 |
Purchase Option and Purchase Obligation
|
45.1 |
Purchase Option
|
45.1.1 |
the Purchase Option shall be exercisable by irrevocable written notice to the Owner given not later than twenty (20) Business Days prior to the Purchase Option Date; and
|
45.1.2 |
the Charterer shall pay to the Owner on the relevant Purchase Option Date the corresponding Purchase Option Price.
|
45.2 |
Purchase Obligation
|
45.3 |
Purchase of Vessel by Charterer
|
45.3.1 |
Immediately upon receipt by the Owner of the Purchase Option Price or the Purchase Obligation Price, as the case may be, the Owner shall:
|
(a) |
procure the release of the mortgage and any other Security over the Vessel created by the Owner; and
|
(b) |
transfer title to the Vessel to either Charterer or its nominee.
|
45.3.2 |
The Vessel shall be sold or transferred by the Owner to the Charterer on the following terms:
|
(a) |
the sale will be on an "as is, where is" basis;
|
(b) |
the Owner shall pass to either Charterer such title to the Vessel as the Owner has acquired pursuant to the MOA, free of any Encumbrances created by the Owner;
|
(c) |
the sale shall exclude all liability of the Owner except for the warranty given by the Owner in paragraph (b) above;
|
(d) |
if the Vessel is, at the date of sale, subject to any requisition for hire, the sale will be subject to such requisition; and
|
(e) |
all costs, expenses, Taxes and any payment of a similar nature arising in connection with the sale of the Vessel by the Owner shall be for the account of the Charterer.
|
46 |
Owner's Rights on Termination
|
46.1 |
At any time after a Termination Event, the Owner may, by notice in writing to the Charterer immediately, or on such date as the Owner shall specify, terminate this Charter, whereupon the Vessel shall no longer be in the possession of the Charterer and the Owner shall be entitled (but not bound) to retake possession of the Vessel. The Charterer shall redeliver the Vessel to the Owner pursuant to Clause 46.2.
|
46.2 |
The Charterer shall redeliver the Vessel to the Owner in accordance with the notice issued by and from the Owner pursuant to Clause 46.1 and:
|
46.2.1 |
at the nearest available port practicable for redelivery or at such other port as the Owner may specify;
|
46.2.2 |
with her class maintained without any conditions or recommendation; 46.2.3 free of average damage affecting the Vessel's class;
|
46.2.4 |
with all the Vessel's classification, trading, national and international certificates that the Vessel had when she was delivered by the Owner to the Charterer under this Charter, valid and un-extended without conditions or recommendation and falling due for a minimum of one (1) months from the time of redelivery;
|
46.2.5 |
in the same or as good structure, state, condition and class as that in which she was deemed to be delivered under clause 2 of Part 2 of this Charter, fair wear and tear not affecting class excepted;
|
46.2.6 |
with all such spare parts and other equipment she had at the time of delivery under this Charter; and
|
46.2.7 |
with all information generated during the Charter Period in respect of the operation, navigation and the physical condition of the Vessel, whether or not such information is contained in the Charterer's equipment, computer or property.
|
46.3 |
The Owner may, at its entire discretion, demand that the Charterer pay to the Owner on the Termination Date or such later date as the Owner shall specify (and without prejudice to any other rights, claims or remedies which the Owner may have) the Termination Sum.
|
46.4 |
The Charterer shall pay or reimburse to the Owner on demand all Losses suffered by the Owner in connection with such termination including, without prejudice to the generality of the foregoing, all liabilities, costs and expenses so incurred in recovering possession of, and in moving, storing, insuring and maintaining, the Vessel and in carrying out any works or modifications required to cause the Vessel to conform with the provisions of Clause 46.2 together with interest thereon pursuant to Clause 38.9 from the date on which the relevant Loss was suffered by the Owner until the date of payment or reimbursement thereof (both before and after any relevant judgment or winding up of the Charterer) pursuant to this Clause 46.
|
46.5 |
Any amount due to the Owner under this Clause 46 shall bear interest pursuant to Clause 38.9 (before and after any relevant judgment or any winding-up of the Charterer) from the Termination Date to the date of the Owner's actual receipt thereof.
|
46.6 |
Notwithstanding the termination of this Charter pursuant to Clause 44.2, the Charterer shall irrevocably and unconditionally continue to comply with its obligations under this Charter until the Vessel is redelivered to the Owner in accordance with Clause 46.2.
|
46.7 |
Upon the receipt of full amount of the Termination Sum and all other sum payable by the Charterer to the Owner hereunder, the Owner shall discharge the mortgage as may be created over the Vessel pursuant to Clause 39.3, and, transfer to the Charterer or its nominee all of the Owner's rights, title and interests in the Vessel on "as is-where is" basis. The Charterer shall not be entitled for any reason whatsoever
|
46.8 |
In the event that the Charterer fails to meet in full the Owner's demand for payment pursuant to this Clause 46:
|
46.8.1 |
the Owner may, at its option, sell the Vessel free of any charter, lease or other engagement concerning the Vessel for such price and on such terms and conditions as it may, in its absolute discretion, think fit.
|
46.8.2 |
the gross proceeds of the sale of the Vessel shall deduct an amount equal to the aggregate of the expenses, disbursements, taxes, costs and losses whatsoever as may have been incurred by the Owner in respect of the sale of the Vessel (the "
Net Sale Proceeds
").
|
46.8.3 |
an amount equal to the Termination Sum shall be deducted from the Net Sale Proceeds. If the Net Sale Proceeds are insufficient to satisfy all amounts due and payable from the Charterer to the Owner hereunder, the Charterer shall pay the outstanding balance to the Owner. If there is any amount remaining from the Net Sale Proceeds after the deduction of all the amounts due and payable by the Charterer to the Owner hereunder, the Owner shall pay the difference to the Charterer.
|
46.8.4 |
notwithstanding any provisions to the contrary contained in the foregoing, the Owner may, at its option, retain the Vessel and have the Vessel valued in Dollars by two Approved Valuers, one appointed by the Owner and the other one appointed by the Charterer, and the average value of the two valuations quoted by such two Approved Valuers shall apply. The Owner may offset against such value all costs incidental to such valuation of the Vessel. If the value of the Vessel is less than the Termination Sum, the Charterer shall immediately pay the difference to the Owner upon demand by the Owner. If the value of the Vessel is higher than the Termination Sum, the Owner shall pay the difference to the Charterer.
|
47 |
Assignment and Set-Off
|
47.1 |
This Charter shall be binding upon and enure for the benefit of the Charterer and the Owner and their respective successors and permitted assigns.
|
47.2 |
The Charterer shall not be entitled to assign or transfer any of its rights or obligations under this Charter, unless with the prior written consent of the Owner.
|
47.3 |
In addition to the right of the Owner to assign under Clause 39.3, the Owner may at any time assign or transfer any or all of its rights and/or obligations under this Charter to any person.
|
47.4 |
Without prejudice to any right of set-off, combination of accounts, lien or other rights to which the Owner is at any time entitled whether by operation of law or contract or otherwise, the Owner may (but shall not be obliged to) set off against any obligation
|
48 |
Communications
|
48.1 |
Except as otherwise provided for in this Charter, all notices or other communications under or in respect of this Charter to either party hereto shall be in writing and shall be made or given to such party at the address or facsimile number or email appearing below (or at such other address or facsimile number or email as such party may hereafter specify for such purposes to the other by notice in writing):-
|
48.1.1 |
In the case of the Owner:
|
Address:
|
18/F, CATIC Tower, 212 Jiang Ning Road, Shanghai, PRC
|
Telephone No.:
|
(86)-21-2226 2623
|
Fax No.:
|
(86)-21-5289 5389
|
Email:
|
zhangqiang@chinaleasing.net
|
48.1.2 |
In the case of the Charterer
|
Address:
|
154 Vouliagmenis Avenue, 16674 Glyfada, Greece
|
Telephone No.:
|
+30 210 891 3520
|
Fax No.:
|
+30 210 963 8404
|
Email:
|
sgyftakis@seanergy.gr
|
48.2 |
All communications and documents delivered pursuant to or otherwise relating to this Charter shall be either in English or accompanied by a certified English translation.
|
49 |
Counterparts
|
50 |
Law and Jurisdiction
|
50.1 |
Governing law
|
Page 45
|
50.2 |
Arbitration
|
50.2.1 |
Any dispute, controversy, difference or claim arising out of or relating to this Charter, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted.
|
50.2.2 |
The law of this arbitration clause shall be Hong Kong law.
|
50.2.3 |
The seat of arbitration shall be Hong Kong. Unless otherwise agreed by the parties hereto (collectively, the "Parties" and each, a "Party"), the arbitration tribunal shall consist of three arbitrators and each Party shall appoint an arbitrator and the two arbitrators so appointed shall select a third arbitrator as the presiding arbitrator.
|
50.2.4 |
The language of the arbitration shall be English.
|
50.2.5 |
The award of the arbitrators shall be final and enforceable and each Party agrees not to contest or seek relief from the award in the courts of any jurisdiction without prejudice to the right of any Party to seek enforcement of any award in the courts of any jurisdiction.
|
50.2.6 |
The arbitration tribunal constituted under this Charter may consolidate two or more arbitrations hereunder if the arbitration proceedings raise common questions of law or fact.
|
Payment No.
|
Fixed Charterhire (US$)
|
Charterhire Principle (US$)
|
Owner's Funding Date
|
$19,875,000.00
|
|
Delivery Date
|
$19,875,000.00
|
|
1
|
$455,500.00
|
$19,419,500.00
|
2
|
$455,500.00
|
$18,964,000.00
|
3
|
$455,500.00
|
$18,508,500.00
|
4
|
$455,500.00
|
$18,053,000.00
|
5
|
$455,500.00
|
$17,597,500.00
|
6
|
$455,500.00
|
$17,142,000.00
|
7
|
$455,500.00
|
$16,686,500.00
|
8
|
$455,500.00
|
$16,231,000.00
|
9
|
$455,500.00
|
$15,775,500.00
|
10
|
$455,500.00
|
$15,320,000.00
|
11
|
$455,500.00
|
$14,864,500.00
|
12
|
$455,500.00
|
$14,409,000.00
|
13
|
$455,500.00
|
$13,953,500.00
|
14
|
$455,500.00
|
$13,498,000.00
|
15
|
$455,500.00
|
$13,042,500.00
|
16
|
$455,500.00
|
$12,587,000.00
|
17
|
$455,500.00
|
$12,131,500.00
|
18
|
$455,500.00
|
$11,676,000.00
|
19
|
$455,500.00
|
$11,220,500.00
|
20
|
$455,500.00
|
$10,765,000.00
|
21
|
$455,500.00
|
$10,309,500.00
|
22
|
$455,500.00
|
$9,854,000.00
|
23
|
$455,500.00
|
$9,398,500.00
|
24
|
$455,500.00
|
$8,943,000.00
|
25
|
$455,500.00
|
$8,487,500.00
|
26
|
$455,500.00
|
$8,032,000.00
|
27
|
$455,500.00
|
$7,576,500.00
|
28
|
$455,500.00
|
$7,121,000.00
|
29
|
$455,500.00
|
$6,665,500.00
|
30
|
$455,500.00
|
$6,210,000.00
|
31
|
$455,500.00
|
$5,754,500.00
|
32
(Balloon Payment)
|
$455,500.00
|
$5,299,000.00
|
1 |
Security Parties
|
1.1 |
A copy of the constitutional documents of each Security Party and the Approved Manager.
|
1.2 |
A copy of a resolution of the board of directors and a copy of a resolution of shareholder(s) of each Security Party and the Approved Manager:
|
1.2.1 |
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party and resolving that it executes, delivers and performs the Transaction Documents to which it is a party;
|
1.2.3 |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Transaction Documents to which it is a party.
|
1.3 |
A specimen of the signature of each person authorised by the resolution referred to in 1.2 above.
|
1.4 |
A certificate of a director or officer of each Security Party and the Approved Manager confirming that guaranteeing or granting of security would not cause any guaranteeing, granting of security or similar limit binding on it to be exceeded.
|
1.5 |
A certificate of an authorised signatory of each Security Party and the Approved Manager certifying that each copy document relating to it specified in this Part 1 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Charter.
|
1.6 |
If applicable, the original attorney of each of the Security Parties and the Approved Manager under which the relevant Transaction Documents to which it is or is to become a party are to be executed or transactions undertaken by that Security Party and the Approved Manager.
|
1.7 |
A certificate of good standing in respect of each Security Party and the Approved Manager (if such a certificate can be obtained).
|
2 |
Transaction Documents
|
2.1 |
Duly executed originals of:-
|
2.1.1 |
this Charter;
|
2.1.2 |
the MOA;
|
2.1.3 |
the Account Pledge;
|
2.1.4 |
the General Assignment;
|
2.1.5 |
the Guarantee;
|
2.1.6 |
the Share Charge;
|
2.1.7 |
the Manager's Undertaking; and
|
2.1.8 |
any other Security Documents,
|
3 |
Other documents and evidence
|
3.1 |
Evidence that the Charterer Account has been opened with the Account Bank.
|
3.2 |
Evidence that the Handling Fee which is due and payable having been received by the Owner.
|
3.3 |
A copy, certified as a true copy by a director of the Charterer, of the Management Agreement.
|
3.4 |
The Original Financial Statements of the Charterer and the Guarantor.
|
3.5 |
A copy of the invoice from the Charterer (as seller) in respect of the Purchase Price of the Vessel under the MOA.
|
3.6 |
Evidence that the Vessel is, or immediately following the Delivery Date will be, insured in accordance with the provisions of this Charter and that all requirements of Clause 43 of this Charter in respect of such Insurances have been complied with.
|
3.7 |
If required by the Owner, an inspection report of the Vessel with respect to the condition of the Vessel satisfactory in all aspects to the Owner.
|
3.8 |
A valuation report dated not more than ninety (90) days prior to the Delivery Date issued by an Approved Valuer.
|
3.9 |
An agreed form legal opinion in relation to English law from Stephenson Harwood.
|
3.10 |
An agreed form legal opinion in relation to German law from Ehlermann Rindfleisch Gadow.
|
3.11 |
An agreed form legal opinion in relation to Marshall Islands law from Poles, Tublin, Stratakis & Gonzalez LLP.
|
3.12 |
An agreed form legal opinion in relation to Liberian law from Poles, Tublin, Stratakis & Gonzalez LLP.
|
3.13 |
An agreed form legal opinion in relation to Cypriot law from Montanios & Montanios LLC.
|
1 |
Other documents and evidence
|
1.1 |
Evidence that the Vessel has been duly delivered by the Charterer (as seller) to the Owner (as buyer) under the MOA free from any Encumbrances), including but not limited to copies of:
|
1.1.1 |
Protocol of Delivery and Acceptance; and
|
1.1.2 |
Bill of Sale,
|
1.2 |
Evidence that the Vessel has been delivered to, and accepted by the Charterer under this Charter.
|
1.3 |
If applicable, evidence that the Vessel has been delivered to, and accepted by the Sub-Charterer under Sub-Charter.
|
1.4 |
Evidence that the Vessel is registered in the name of the Owner as legal owner under the laws and flag of the Flag State free from any Encumbrances.
|
1.5 |
If applicable, a copy, certified as a true copy by a director of the Charterer, of the Sub-Charter.
|
1.6 |
Evidence that the Upfront Charterhire or the Deposit which is due and payable having been received by the Owner.
|
1.7 |
If required by the Owner or the Mortgagee, a satisfactory opinion from an insurance consultant approved by the Owner on the insurances effected or to be effected on the Vessel pursuant to the provisions of this Charter.
|
1.8 |
Documents that the Owner may reasonably require.
|
1.9 |
Documents that the Mortgagee may reasonably require.
|
1 |
Relevant documents and evidence
|
1.1 |
Notices of assignment and/or charge under the relevant Transaction Documents have been served on the relevant parties and the acknowledgement of such notices and/or undertaking has been duly executed or the execution of which has been confirmed by the relevant parties.
|
1.2 |
Letters of undertaking in respect of the Insurances as required by the Security Documents together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Owner.
|
1.3 |
Acknowledgements of all notices of assignment and/or charge given pursuant to any Transaction Documents have been received by the Owner.
|
1.4 |
Evidence that the Vessel is classified and maintained in the highest class (free of outstanding recommendations or conditions of class) with the Classification Society.
|
1.5 |
A copy of the following Vessel documents:
|
1.5.1 |
the Vessel's current Safety Construction, Safety Equipment, Safety Radio and Load Line Certificates;
|
1.5.2 |
the Vessel's current SMC;
|
1.5.3 |
the ISM Company's current DOC in respect of the Vessel;
|
1.5.4 |
the Vessel's current ISSC;
|
1.5.5 |
the Vessel's current IAPPC; and
|
1.5.6 |
the Vessel's current Tonnage Certificate.
|
1.6 |
A legal opinion in relation to English law from Stephenson Harwood.
|
1.7 |
A legal opinion in relation to in relation to German law from Ehlermann Rindfleisch Gadow.
|
1.8 |
A legal opinion in relation to Marshall Islands law from Poles, Tublin, Stratakis & Gonzalez LLP.
|
1.9 |
A legal opinion in relation to Liberian law from Poles, Tublin, Stratakis & Gonzalez LLP.
|
1.10 |
A legal opinion in relation to Cypriot law from Montanios & Montanios LLC.
|
for and on behalf of
|
for and on behalf of
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
The Owner
|
The Charterer
|
|
Hanchen Limited
|
Knight Ocean Navigation Co.
|
|
by:
|
by:
|
|
/s/ Zhou Qi | /s/ Stavros Gyftakis | |
Name: Zhou Qi
|
Name: Stavros Gyftakis
|
|
Title: Director
|
Title: Director
|
|
Date: 28 June 2018
|
Date: 28 June 2018
|
|
Execution Version
MEMORANDUM OF AGREEMENT
Dated:
|
Norwegian Shipbrokers' Association's Memorandum of Agreement for sale and purchase of ships adopted by The Baltic and International Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1966,1983 and 87.
|
Flag: Liberia
Call Sign: D5MN5
IMO Number: 9507893
|
Place of Registration: Liberia
Grt/Nrt: 93,186/59,500
|
(a) |
The Sellers and the Buyers agree that the Upfront Charterhire shall be deducted from the Purchase Price (the full amount of the Purchase Price, after deducting the Upfront Charterhire is hereinafter referred to as the
"Balance")
and that the Upfront Charterhire, upon the title transfer of the Vessel, shall be deemed to have been paid by the Sellers to the Buyers in accordance with Clauses 38.1.1 and 38.1.2 of the Bareboat Charter upon the deductions to the Purchase Price having been made in accordance with the terms of this Clause 3(a) and thereunder.
|
(b) |
Provided that all conditions precedent as set out in Part 1 of Schedule 2
(Conditions Precedent and Subsequent)
of the Bareboat Charter are fully satisfied, the Balance shall be paid in accordance with the provisions of this Clause 3 to the account designated in writing by the Sellers prior to delivery.
|
(c) |
Save for the deductions set out in paragraph (d) below, the Balance shall be remitted (and subsequently released as the case may be) free of bank charges, withholdings, or any other deductions whatsoever. Any applicable bank charges, withholdings (other than any withholdings which are relevant to or a result of any form of obligations of the Sellers) or deductions imposed by the Sellers' or Buyers' bank shall be for the account of the Sellers.
|
(d) |
The Sellers and the Buyers agree that the Deposit shall be deducted from the Balance prior to being paid to the Sellers.
|
(d) |
The Balance will be remitted from the account held by CHINA AVIATION INTERNATIONAL HOLDING CO.,LTD which wholly owns (directly) the Owner and the account details are set out as below:
|
4. |
Inspections
|
|
|
|
|
5. |
Notices, time and place of delivery
|
a) |
The Vessel will be delivered at sea. The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with 3 and 1 days notice of the estimated time of arrival at the intended place of delivery. When the Vessel is at the place of delivery and in every material respect physically ready for delivery in accordance with this Agreement, the Sellers shall give the Buyers a written notice of readiness for delivery.
|
b) |
The Vessel shall be delivered and taken over safely afloat at sea in the Sellers' option.
|
|
|
d) |
Should the Vessel become an actual, constructive or compromised total loss before delivery, thc deposit together
with
interest earned
shall be
released immediately to the Buyers whereafter this Agreement shall be null and void.
|
6. |
Drydocking/Divers Inspection
|
b)** |
(i) The Vessel is to be delivered without drydocking. However, the Buyers shall have the right at their expense to arrange for an underwater inspection by a diver approved by the Classification Society prior to the delivery of the Vessel. The Sellers shall at their cost make the Vessel available for such inspection. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society. If the conditions at the port of delivery are unsuitable for such inspection, the Sellers shall make the Vessel available at a suitable alternative place near to the delivery port.
|
|
|
** |
6 a)
and 6 b) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 6 a) to apply.
|
a) |
Legal Bill of Sale in two (2) originals in form recordable in (the country in which the Buyers are to register the Vessel), warranting that the Vessel is free from all
|
b) |
Current Certificate of Ownership issued by the competent authorities of the flag state of the Vessel; evidencing the Sellers' ownership of the Vessel and that the Vessel is free from registered encumbrances;
|
c) |
Confirmation of Class issued within 72 hours prior to delivery confirming that the Vessel is in Class free of overdue conditions/recommendations;
|
|
|
|
|
f) |
Original resolution of the board of directors of the Sellers, (i) ratifying and approving the execution of this Agreement and any addendum to this Agreement, (ii) approving the sale of the Vessel to the Buyers for the Purchase Price and (iii) approving any one director or any one attorney to execute on behalf of the Sellers the Bill of Sale, the Protocol of Delivery and Acceptance and all other documents required for the sale of the Vessel and her delivery to the Buyers and to deal with all matters in relation to the completion of the sale and transfer of title of the Vessel to the Buyers; and (iv) (if applicable) approving authorisation of person(s) to execute a Power of Attorney appointing certain persons to execute on behalf of the Sellers the Bill of Sale, the Protocol of Delivery and Acceptance and all other documents required for the sale of the Vessel and her delivery to the Buyers and to deal with all matters in relation to the completion of the sale and transfer of title of the Vessel to the Buyers, duly certified and legalized by Apostille by the Special Agent of the Liberia Maritime Authority.
|
g) |
Original resolution of the shareholder(s) of the Sellers ratifying and approving the resolution of the board of directors of the Sellers, duly certified and legalized by Apostille by the Special Agent of the Marshall Islands in Greece.
|
h) |
If applicable, original Power of Attorney issued pursuant to the resolution of the board of directors of the Sellers, appointing the Sellers' attorneys to execute on behalf of the Sellers the Bill of Sale, the Protocol of Delivery and Acceptance and all other documents required for the sale of the Vessel and her delivery to the Buyers and to deal with all matters in relation to the completion of the sale and transfer of title to the Vessel to the Buyers, duly certified and legalized by Apostille by the Special Agent of the Liberia Maritime Authority.
|
i) |
One (1) original of the Sellers' Letter of Confirmation on "No Black Listed", no other or dual registration, or no pending criminal investigation by any competent authorities for any alleged MARPOL violation or oil pollution in respect of the Vessel;
|
|
All original Continuous Synopsis Record (CSR) (from No. 1 to present number) are to remain on board;
|
k) |
A commercial invoice for the Vessel in two (2) originals; and
|
1) |
Any such additional documents as may reasonably be required by the competent authorities for the purpose of registering the Vessel under the flag of Liberia.
|
a)* |
This Agreement and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and construed in accordance with English law.
|
|
|
|
|
* |
16 a),
16 b) and 16 c) are alternatives: delete whichever is not applicable. In the absence of deletions, alternative 16 a) to apply.
|
For and on behalf of
The Sellers
Knight Ocean Navigation Co.
/s/ Stavros Gyftadis
Name:
Stavros Gyftadis
Title:
Director
|
For and on behalf of
The Buyers
Hanchen Limited
/s/ Zhou Qi
Name:
Zhou Qi
Title:
Director
|
Norwegian Shipbrokers' Association's
|
|
Memorandum of Agreement for sale and
|
|
purchase of ships. Adopted by BIMCO in 1956.
|
|
Code-name
|
|
SALEFORM 2012
|
|
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
Year of Build:
2010
|
Builder/Yard:
Daewoo Shipbuilding & Marine Engineering Co., Ltd., Geoje-si, Korea
|
Flag:
Liberia
|
Place of Registration:
German Ship Register with the local court of Hamburg, Germany/Monrovia, Liberia (Bareboat Register)
|
GT/NT:
94,250/59,547
|
1.
|
Purchase Price
|
The Purchase Price is
USD 28,700,000.00 (in words: United States Dollars Twenty-Eight Million Seven Hundred Thousand only)
(state currency and amount both in words and figures).
|
|
2.
|
Deposit
|
As security for the correct fulfilment of this Agreement the Buyers shall lodge a deposit of
|
"Deposit") in an
|
||
(i)
|
this Agreement has been signed by the Parties and exchanged in original or by e-mail or telefax; and
|
|
(ii)
|
the Deposit Holder has confirmed in writing to the Parties that the account has been opened
and the escrow account agreement between the Sellers, the Buyers and the Deposit Holder has been executed; and
|
|
(iii)
|
the subject as per Clause 20 has been lifted.
|
|
The Deposit shall be released in accordance with joint written
trust
instructions of the Parties.
|
||
3.
|
Payment
|
|
On delivery of the Vessel, but not later than three (3) Banking Days after the date that Notice of Readiness has been given in accordance with
Clause 5
(Time and place of delivery and notices):
|
||
(i)
|
the Deposit shall be released to the Sellers; and
|
|
(ii)
|
the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement
(the "Remaining Funds")
shall be paid in full free of bank charges to the Sellers' Account.
The Remaining Funds to be prepositioned in the name of the Buyers or the Buyers' bank by MT199 one (1) Banking Day prior to the scheduled delivery of the Vessel to Sellers' Bank and released to Sellers' Account against presentation of the protocol of delivery and acceptance duly timed and signed by both Parties.
|
|
4.
|
Inspection
|
|
(a)
* The Buyers have inspected and accepted the Vessel's classification records. The Buyers have also inspected the Vessel at/in
Singapore Eastern Anchorage
(state place)
on
28 May 2018
(state date)
and have accepted the Vessel following this inspection. and the sale is outright and definite, subject only to the terms and conditions of this Agreement.
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
5.
|
Time and place of delivery and notices
|
|
(a)
The Vessel shall be delivered and taken over safely afloat at a safe and accessible berth or anchorage
|
||
Notice of Readiness shall not be tendered before:
15 October 2018
(
date
)
|
||
Cancelling Date (see
Clauses 5(c),
6 (a)(i)
,
6 (a)(iii)
and
14
):
30 November 2018
|
||
(b)
The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with twenty (20),
fifteen (15),
ten (10),
seven (7),
five (5) and three (3) days'
approximate
notice
and one (1) days' definite notice
of the date the Sellers intend to tender Notice of Readiness and of the intended place of delivery.
|
||
When the Vessel is at the place of delivery and physically ready for delivery in accordance with this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
|
||
(c)
If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing stating the date when they anticipate that the Vessel will be ready for delivery and proposing a new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with
Clause 14
(Sellers' Default) within three (3) Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date. If the Buyers have not declared their option within three (3) Banking Days of receipt of the Sellers' notification or if the Buyers accept the new date, the date proposed in the Sellers' notification shall be deemed to be the new Cancelling Date and shall be substituted for the Cancelling Date stipulated in
line 79
.
|
||
If this Agreement is maintained with the new Cancelling Date all other terms and conditions hereof including those contained in
Clauses 5(b)
and
5(d)
shall remain unaltered and in full force and effect.
|
||
(d)
Cancellation, failure to cancel or acceptance of the new Cancelling Date shall be entirely without prejudice to any claim for damages the Buyers may have under
Clause 14
(Sellers' Default) for the Vessel not being ready by the original Cancelling Date.
|
||
(e)
Should the Vessel become an actual, constructive or compromised total loss before delivery the Deposit together with interest earned, if any, shall be released immediately to the Buyers whereafter this Agreement shall be null and void
and the parties shall have no claims against each other under or in connection with this Agreement
.
|
||
6.
|
Divers Inspection / Drydocking
|
|
(a)*
|
||
(i)
|
The Buyers shall have the option at their cost and expense to arrange for an underwater inspection by a diver approved by the Classification Society prior to the delivery of the Vessel. Such option shall be declared latest nine (9) days prior to the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to
Clause 5(b)
of this Agreement. The Sellers shall at their cost and expense make the Vessel available for such inspection. This inspection shall be carried out without undue delay and in the presence of a Classification Society surveyor arranged for by the Sellers and paid for by the Buyers. The Buyers' representative(s) shall have the right to be present at the diver's inspection as observer(s) only without interfering with the work or decisions of the Classification Society surveyor. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society. If the conditions at the place of delivery are unsuitable for such inspection, the Sellers shall at their cost and expense make the Vessel available at a suitable alternative place
within Charterers' sailing schedule
|
|
(ii)
|
|
|
|
||
(iii)
|
|
|
|
||
|
||
(i)
|
|
|
(ii)
|
|
|
(iii)
|
|
|
(iv)
|
|
|
|
||
**Notes or memoranda, if any, in the surveyor's report which are accepted by the Classification Society without condition/recommendation are not to be taken into account.
|
||
7.
|
Spares, bunkers and other items
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board
|
||
Library and forms exclusively for use in the Sellers' vessel(s) and captain's, officers' and crew's personal belongings including the slop chest
, Vessel's cash box and all documents pertaining to the ISM/ISPS system of the Sellers
are excluded from the sale without compensation, as well as the following additional items:
- Chartworld ECDIS
- ECDIS charts
- SPOS
- TA Servers
- Company files ISM/ISPS
- mobile phone + sim card
- Charterers equipment
- Training videos
- Laptop containing emergency ECDIS
- all log book/records (byers may take copy of last 12 months)
- all company policies, instructions, manuals
- company stamps
- company Personal Protective Equipment
- all crew related doc's
- Alco tester
- personal gas detection equipment
- ISF watch keeper
- Fuel testing equipment
- SERS
- all SMS and ISM related documents and plans except of those made by ship yard
- company leased, rented equipment (gas bottles OX, AC, Freon etc.)
- VoD box (Videotel)
- all satellite equipment thats not part of the GMDSS equipment (ie FBB)
(include list)
|
||
Items on board which are on hire or owned by third parties, listed
above
|
||
Items on board at the time of inspection which are on hire or owned by third parties, not listed above, shall
|
||
The Buyers shall take over remaining bunkers
(unless they are the property of the Charterers)
and unused unbroached lubricating and hydraulic oils and greases in storage tanks and unopened sealed drums and pay
|
||
In case such invoices and vouchers are not available the Buyers shall pay
|
||
|
||
for the quantities taken over
; and
.
|
||
(ii) for unused lubricating and hydraulic oils and greases the current market price which shall be the average of quotes obtained from luboil providers for each quantity of unused lubricating and hydraulic oils and greases remaining on board at the time of delivery, one to be obtained by each of the Parties two (2) Banking Days prior scheduled delivery of the Vessel. Should either of the Parties fail to obtain such a quote within the stipulated time then the quote duly obtained by the other Party shall be the sole basis for the current market price for the respective quantity of unused lubricating and hydraulic oils and greases.
The quantities of remaining bunkers and unused lubricating and hydraulic oils and greases remaining on board at the time of delivery shall be measured and established by a joint survey by the Sellers" and the Buyers" representatives on board two (2) days prior to the scheduled date of delivery — an agreed allowance for consumption for the period between the joint survey and the time of physical delivery to be subtracted from the figures found during the said joint survey.
Should Buyers" representative fail to conduct such joint survey, the quantities established by the Sellers" representative shall be the sole basis for invoicing the remaining bunkers and unused lubricating and hydraulic oils and greases.
Should Sellers" representative fail to conduct such joint survey, the quantities established by the Buyers" representative shall be the sole basis for invoicing the remaining bunkers and unused lubricating and hydraulic oils and greases.
|
||
Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.
|
||
|
||
*(a) and (b) are alternatives, delete whichever is not applicable. In the absence of deletions alternative (a) shall apply.
|
||
8.
|
Documentation
|
|
The place of closing:
Hamburg, Germany
|
||
(a)
In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the following delivery documents listed in Clause 20:
|
||
(i)
|
Three (3) originals of a
|
|
(ii)
|
Copies of (i) the Court Order regarding the opening of insolvency proceedings
(Eroffnungsbeschluss) over the assets of Kommanditgesellschaft MS "CPO OCEANIA" Offen Reederei UG (haftungsbeschrankt) & Co.,and (ii) the appointment of Dr. Hagen Frhr. von Diepenbroick in his capacity as insolvency administrator over the assets of Kommanditgesellschaft MS "CPO OCEANIA" Offen Reederei UG (haftungsbeschrankt) & Co., (Insolvenzverwalterbescheinigung);
|
|
(iii)
|
Original
Power of Attorney of the Sellers appointing one or more representatives to act on behalf of the Sellers in the performance of this Agreement
to execute the Bills of Sale, the Protocol of Delivery and Acceptance, the joint release instructions for the Deposit and any other documents required for the sale and delivery of the Vessel to the Buyers and generally to act on behalf of the Sellers in connection with the sale and delivery of the Vessel to the Buyers, signed by the Sellers
, duly notarially attested and legalised or apostilled (as appropriate)
with a confirmation from the Notary Public confirming the
insolvency administrators authority and attaching a certified true copy of the court order regarding the opening of the insolvency proceedings
;
|
|
(iv)
|
Certificate
|
|
(v)
|
Original
Declaration of
the Vessel's present
Class or (depending on the Classification Society) a Class Maintenance Certificate issued within
|
|
(vi)
|
Certificate of Deletion of the Vessel from the
Liberian bareboat registry
|
|
(vii)
|
Original Sellers Letter of Undertaking stating that they will provide the Buyers with the
259
original closed CSR from the Bareboat Registry and the German Flag Authorities within thirty
(30) running days from the delivery of the Vessel to the Buyers
|
|
(viii)
|
Three originals of the
Commercial Invoice for the Vessel
dated the delivery date stating the full particulars of the Vessel and the Purchase Price of the Vessel and signed by the Sellers
;
|
|
(ix)
|
Three originals of the
Commercial Invoice(s) for bunkers
(unless they are the property of the Charterers)
, lubricating and hydraulic oils and greases
including supporting evidence as per Clause 7 of this Agreement dated the delivery date and signed by the Sellers
;
|
|
(x)
|
A copy of the Sellers'
|
|
(xi)
|
Original Certificate of Ownership and Encumbrances from the Vessels German Registry dated not earlier than three (3) Banking Days of the date of delivery certifying Kommanditgesellschaft MS "CPO OCEANIA" Offen Reederei UG (haftungsbeschrankt) & Co. to
|
be the present owners of the Vessel and evidencing any current mortgage(s);
|
||
(xii)
|
(jointly with Buyers) Original Joint Release Letter for the Deposit (in three originals, one for Sellers, one for Buyers and one for the Deposit Holder);
|
|
(xiii)
|
(jointly with Buyers) Protocol of Delivery and Acceptance (in four originals, two for each of the Sellers and the Buyers);
|
|
(xiv)
|
Vessel's present Class Statement/ Affidavit stating the following: i) the Vessels certificates and their statues (i.e. validity and expiration date), ii) any class items and conditions whether outstanding or not iii) the current survey status setting forth any overdue surveys and iv) that the Vessel is fit to proceed at sea, dated no more than ten (10) running days prior to delivery date of the Vessel with a copy of the Vessels Class Certificate attached. One copy of the same to be sent ten (10) running days prior to the delivery of the Vessel to the Vessels new flag administrator;
|
|
(xv)
|
One original letter from the Sellers confirming that any outstanding radio accounts shall be settled by the Sellers as soon as practically possible after the Vessels delivery with no liability regarding the same to be incurred against the Buyers; and
|
|
(xvi)
|
Any additional documents as may reasonably be required by the competent authorities of the Buyers' Nominated Flag State for the purpose of registering the Vessel, provided the Buyers notify the Sellers of any such documents as soon as possible after the date of this Agreement
.
|
|
|
|
|
(b)
At the time delivery the Buyers shall provide the Sellers with:
|
||
(i)
|
True certified resolutions of (i) the directors and (ii) the shareholders of the Buyers, 277
authorising the purchase of and taking delivery of the Vessel in accordance with the MoA, ratifying the signing of the MoA and authorising the execution of a Power of Attorney, duly notarially attested and legalised or apostilled by the Special Agent of the Republic of the Marshall Islands
|
|
(ii)
|
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised or apostilled (as appropriate).
|
|
(iii)
|
Certificate of Incumbency (duly notarially attested and legalised or apostilled) setting out the directors legally entitled to represent the Buyers not older than seven (7) Banking Days.
|
|
(iv)
|
Certified copy of the Certificate of Incorporation issued by the local authority of the Buyers;
|
|
(v)
|
Three (3) Release Letters for the release of the Remaining Funds (one for Sellers, one for Buyers, one for Sellers' Bank).
|
|
(c)
If any of the documents listed in Sub clauses (a) and (b) above are not in the English language they shall be accompanied by an English translation by an authorised translator or certified by a lawyer qualified to practice in the country of the translated language.
|
||
(d)
The Parties shall to the extent possible exchange copies, drafts or samples of the documents listed in Sub-clause (a) and Sub-clause (b) above
fo
r review and comment by the other party not later than
seven (7)
(state number of days)
,
|
||
(e)
Concurrent with the exchange of documents in Sub-clause (a) and Sub-clause (b) above, the Sellers shall also hand to the Buyers the classification certificate(s) as well as all plans, drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel. Other certificates which are on board the Vessel shall also be handed over to the Buyers unless the Sellers are required to retain same, in which case the Buyers have the right to take copies.
|
||
(f)
Other technical documentation which may be in the Sellers' possession shall promptly after
|
delivery be forwarded to the Buyers at their expense, if they so request. The Sellers may keep the Vessel's log books but the Buyers have the right to take copies of same.
|
|
(g)
The Parties shall sign and deliver to each other a Protocol of Delivery and Acceptance confirming the date and time of delivery of the Vessel from the Sellers to the Buyers
after which Sellers to effect deletion of the Vessel from the Vessel's underlying German ship registry and to provide a fax copy of the certificate of deletion to Buyers, original to follow latest within seven (7) Banking Days after the Purchase Price has been paid and the Vessel has been delivered and Sellers to provide an original letter of undertaking to effect deletion of the Vessel from the Vessel's underlying German Ship Register, if possible, on the date of delivery of the Vessel from the Sellers to the Buyers.
.
|
|
9.
|
Encumbrances
|
The Sellers
only
warrant that the Vessel, at the time of delivery, is free from all
For the purpose of such indemnity, the Deposit shall not be released in full to Sellers upon delivery but part of the Deposit in the Amount of the Retention Amount shall be retained by the Deposit Holder in in the joint account for the Retention Period in accordance with the escrow account agreement. At any time during the Retention Period and upon occurrence of a Retention Claim verified by corresponding evidence, the Retention Amount (or any part thereof) shall, following a joint release letter by the Sellers and the Buyers under the escrow account agreement, be released to the Buyers for the purpose of settling such Retention Claim. At the end of the Retention Period the Retention Amount (or any part remaining thereof following a release to the Buyers pursuant to this Clause 9) shall be automatically released to the Sellers without further instructions.
|
|
10.
|
Taxes, fees and expenses
|
Any taxes, fees and expenses in connection with the purchase and registration in the Buyers' Nominated Flag State shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers' register shall be for the Sellers' account.
|
|
11.
|
Condition on delivery
|
The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be delivered and taken over as she
is at the time of delivery.
However, the Vessel shall be delivered with her Class maintained as per the actual class survey report dated the day of the Vessel's delivery. In case the Vessel suffers (i) Underwater Damage and/or (ii) damage between inspection and delivery of the Vessel so as to affect the Vessels class by way of imposing one or more class condition(s), normal wear and tear excepted, (together with the Underwater Damage the "Damage") the Sellers undertake to (i) repair the Vessel to the satisfaction of the Classification Society without condition or (ii) deliver the Vessel with the Damage against a deduction from the Purchase Price in the amount of the estimated direct costs of labour and material together with drydock fees (unless as regards dry dock fees the Classification Society does not require the Damage to be rectified before the next scheduled drydocking survey) and expenses (including but not limited to repair expenses, positioning costs, harbour fees etc.) of carrying out the repairs to the satisfaction of the Classification Society without condition (the "Cost"), whereafter the Buyers shall have no further rights whatsoever in respect of the Damage and/or repairs. The Costs shall be the average of quotes for the Costs obtained from either (i) two reputable independent shipyards at or in the vicinity of the port of delivery in case, according to the Classification Society, the Damage can only be repaired by a shipyard or (ii) from two Classification Societys approved repair/diving companies at or in the vicinity of the port of delivery in case, according to the Classification Society, the
|
repair of the Damage can be carried out afloat, in either case, one to be obtained by each of the Parties within two (2) Banking Days from the date of the imposition of the condition(s), unless the Parties agree otherwise. Should either of the Parties fail to obtain such a quote within the stipulated time then the quote duly obtained by the other Party shall be the sole basis for the estimation of the Costs. The Sellers may not tender Notice of Readiness prior to such estimate having been established. The Cancelling Date shall be extended by the additional time required to obtain the quotes for the Cost. If the Cost of the Damage as per above are estimated to be above the amount of USD 120,000.00 (United States Dollars one hundred twenty thousand) (the Maximum Amount) then the Sellers shall have the option (but for the avoidance of doubt, not the obligation) to cancel this Agreement. Should the Costs exceed the Maximum Amount and the Sellers inform the Buyers of their intention to cancel this Agreement then the Buyers shall have the right to accept the Maximum Amount as a lumpsum compensation to be deducted from the Purchase Price and take delivery of the Vessel as she is. Such option to be declared by Buyers within two (2) Banking Days after receipt of Sellers notification that they intent to cancel this Agreement in accordance with this Clause 11. In case this Agreement is cancelled in accordance with this Clause 11 then the Deposit shall be released to Buyers immediately and this Agreement shall become null and void without either Party having any claims against the other Party in relation to this Agreement. The Sellers shall grant no further warranty and shall have no further liability with respect to the condition of the Vessel in excess of the stipulations of this clause 11.
|
|
|
|
|
|
*Notes and memoranda, if any, in the surveyor's report which are accepted by the Classification Society without condition/recommendation are not to be taken into account.
|
|
12.
|
Name/markings
|
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
|
|
13.
|
Buyers' default
|
Should
(i) the Deposit Holder not be provided with the necessary documentation by the Buyers in
328
time in accordance with Clause 2, (ii) the escrow account agreement not be executed by the Buyers in time in accordance with Clause 2 or (iii)
the Deposit not be lodged in accordance with
Clause 2
(Deposit), the Sellers have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest,
if any
.
|
|
Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers have the right to cancel this Agreement, in which case the Deposit together with interest earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the Sellers shall be entitled to claim further compensation for their losses and for all expenses incurred together with interest.
|
|
14.
|
Sellers' default
|
Should
(i) the Deposit Holder not be provided with the necessary documentation by the Buyers in
328
time in accordance with Clause 2, (ii) the escrow account agreement not be executed by the Buyers in time in accordance with Clause 2 or (iii)
the Sellers fail to give Notice of Readiness in accordance with
Clause 5(b)
or fail to be ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the option of cancelling this Agreement. If after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not made physically ready again by the Cancelling Date and new Notice of Readiness given, the Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this Agreement, the Deposit together with interest earned, if any, shall be released to them immediately
without Buyers having any further claim against Sellers under or in connection with this Agreement whatsoever
.
|
|
|
|
|
15.
|
Buyers' representatives
|
After this Agreement has been signed by the Parties and the Deposit has been lodged, the Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and expense,
either 14 days prior intended physical delivery of the Vessel or as of the last port prior intended physical delivery of the Vessel, in Buyers option
.
|
|
These representatives are on board for the purpose of familiarisation and in the capacity of observers only, and they shall not interfere in any respect with the operation of the Vessel. The Buyers and the Buyers' representatives shall sign the Sellers'
/-technical manager's
P&L Club's standard letter of indemnity prior to their embarkation.
|
|
16.
|
Law and Arbitration
|
(a)
*
This Agreement
and any non-contractual obligations arising in connection therewith
shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
|
|
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.
|
|
The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the fourteen (14) days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both Parties as if the sole arbitrator had been appointed by agreement.
|
|
In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
|
|
|
|
|
|
|
|
|
17.
|
Notices
|
All notices to be provided under this Agreement shall be in writing.
|
|
Contact details for recipients of notices are as follows:
|
|
For the Buyers:
Attention: Stamatios Tsantanis
c/o Seanergy Maritime Holdings Corp.,
154 Vouliagmenis Avenue, 16674 Glyfada, Athens, Greece
Telephone: +30 210 8913507
Fax: +30 210 9638404
|
E-mail: snt@seanergy.gr
or such other address as the Buyers may notify the Sellers
|
|
For the sellers:
(1) Insolvency Administrator
Dr. Hagen Frhr. V. Diepenbroick/Reinhold Horn
c/o Munzel & Bohm Rechtsanwalte PartG MbB, Moorfuhrtweg 11, 22301 Hamburg, Germany
Tel: +49 40 65052590 Fax: +49 40 650525959 Email: diepenbroick@muenzel-boehm.de
horn@muenzel-boehm.de
|
|
(2) Cyrus Makowski Rechtsanwalte Partnerschaft mbB
Christine Wegner/Dr. Vivian Fuchs
Willy-Brandt-StraBe 61, 20457 Hamburg, Germany
Tel: +49 40 3006630 Fax: +49 40 30066325
Email: Christine.wegner@cyrusross.de/vivian.fuchs@cyrusross.de
|
|
18.
|
Entire Agreement
|
The written terms of this Agreement comprise the entire agreement between the Buyers and the Sellers in relation to the sale and purchase of the Vessel and supersede all previous agreements whether oral or written between the Parties in relation thereto.
|
|
Each of the Parties acknowledges that in entering into this Agreement it has not relied on and shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether or not made negligently) other than as is expressly set out in this Agreement.
|
|
Any terms implied into this Agreement by any applicable statute or law are hereby excluded to the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude any liability for fraud.
|
|
19.
|
Confidentiality
|
The terms and conditions of this Agreement to be kept strictly private and confidential among the Parties, provided however that the Parties may disclose as much as may be necessary of the terms of this Agreement:
(a)
in case and to the extent required by law including but not limited to the Securities and Exchange Commission laws or the US stock listed exchange rules or requested by court or by the Sellers
-
creditors in connection with the Sellers" insolvency proceedings;
(b)
to auditors, third party managers, external cousel or accountants;
(c)
to their owners, affiliates or subsidiaries; or
(d)
in connection with any financing of the Vessel;
|
|
provided that the recipients of confidential information under (b), (c) and (d) above agree or are required to keep the terms of this Agreement confidential in accordance with the terms of this clause. However should, despite the efforts of all Parties involved, details of this Agreement become public in the market, neither the Sellers nor the Buyers have the right to withdraw from the sale or fail to fulfill their obligations under this Agreement.
|
|
20.
|
Effectiveness
|
This Agreement shall become effective upon and subject to consent of Sellers' Bank being the mortgagee of the first ranking mortgage on the Vessel to be given within one (1) Banking Day after this Agreement has been signed by the last of the Parties to this Agreement and exchanged by the Parties by email.
|
|
21.
|
Nomination
|
The Buyers are entitled to nominate a guaranteed wholly owned subsidiary as Buyers of the Vessel from the Sellers. Such nomination to be declared latest 10 Banking Days after execution of this Agreement. Seanergy Maritime Holdings Corp., however, in such case to remain responsible and liable for the fulfilment of this Agreement as Buyers. In case Sellers' Bank does not confirm the nominee, Buyers have the option to withdraw the nomination or nominate another company which is subject to the aforementioned confirmation by Sellers' Bank. Failing approval by Sellers' Bank, Sellers have the option to cancel this Agreement in which case the Deposit shall be released to the Buyers immediately and neither Party shall have any further claim against the other Party under or in connection with this Agreement.
|
|
22.
|
Novation Agreement
|
In case a novation agreement of the charter entered into between the Sellers and Swissmarine
|
(the "Charterers") dated 22 May 2016 as amended thereafter on 6 February 2017 and 21 March 2018 (the "Charter") pursuant to which all rights and obligations arising after the date of delivery of the Sellers under the Charter are novated to the Buyers (the "Novation Agreement") has not been duly executed by the Sellers, the Buyers and the Charterers latest by 28 September 2018 this Agreement shall become null and void and the Deposit shall be released to the Buyers immediately and the Parties shall have no further claims against each other under or in connection with this Agreement.
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
Name:
Dr. Hagen Freiherr von Diepenbroick
|
Name: Stamatios Tsantanis
|
|
Title:
Insolvency Administrator
|
Title: CEO
|
|
/s/ Dr. Hagen Freiherr von Diepenbroick | /s/ Stamatios Tsantanis |
I. |
Clause 22 of the MOA provides for the Novation Agreement to be concluded latest by 28 September 2018.
|
II. |
As of today, the Novation Agreement has not been concluded.
|
III. |
The exact dates of the Charter as well as the addenda have not been correctly reflected in Clause 22 of the MOA.
|
IV. |
The Parties agreed on a postponement of the deadline regarding the Novation Agreement and a clarification regarding the dates of the Charter and wish to change the date by which the Novation Agreement as per Clause 22 of the MOA is to be concluded to 12 October 2018 and to correct the date of the Charter and the addenda thereto.
|
1. |
With effect of the execution (signing) of this Addendum No. 1, Clause 22 of the MOA to be amended to read as follows:
|
2. |
Any words and expressions defined in the MOA shall have the same meaning when used herein and terms used and expressions defined in this Addendum No. 1 shall have, vice versa, the same meaning in the MOA, in each case unless otherwise defined or unless the context otherwise requires.
|
3. |
This Addendum No. 1 shall be governed by the laws of England and shall be subject to the arbitration procedure as said out in Clause 16 of the MOA, as though it was set out herein.
|
4. |
If one or more provisions of this Addendum No. 1 should be or become fully or partly invalid or unenforceable, the other provisions of this Addendum No. 1 or the rest of the provisions, as the case may be, shall remain unaffected. The parties shall agree on a new provision replacing the invalid or unenforceable one or its part, which comes as close as legally possible to the intended economic effect of the invalid or unenforceable provision. This stipulation applies mutatis mutandis if it turns out that the parties have by mistake omitted to regulate a certain question.
|
5. |
Save as set out herein in this Addendum No. 1, all other terms and conditions of the MOA, remain unchanged and in full force and effect.
|
/s/ Dr. Hagen v. Diepenbroick | /s/ Stavros Gyftakis | |
ON BEHALF OF THE SELLERS
|
ON BEHALF OF THE BUYERS
|
|
NAME: Dr. Hagen v. Diepenbroick
|
NAME: Stavros Gyftakis
|
|
TITLE: Insolvency Administrator
|
TITLE: Director
|
|
CONFIRMED
by Seanergy Maritime Holdings Corp.:
|
||
/s/ Stavros Gyftakis | ||
ON BEHALF OF SEANERGY
|
||
NAME: Stavros Gyftakis
|
||
TITLE: Attorney-in-fact
|
I. |
Pursuant to a memorandum of agreement in the Norwegian Sale Form 2012 dated 31 August 2018 (as amended by Addendum No. 1 dated 28 September 2018 (the "
Addendum No. 1
") and as amended from time to time, the "
MOA
"), the Sellers agreed to sell to Seanergy Maritime Holdings Co., organized and existing under the laws of the Republic of the Marshall Islands, with registered address at 154 Vouliagmenis Avenue, 16674 Glyfada, Athens, Greece ("
Seanergy
"), or its guaranteed nominee, the motor vessel "CPO OCEANIA" with IMO number 9522099 registered under the German Ship Register and the Liberia Bareboat Register (the "
Vessel
") and Seanergy agreed to buy the Vessel.
|
II. |
Seanergy nominated Fellow Shipping Co., organized and existing under the laws of the Republic of the Marshall Islands (the "
Buyers
") as final buyer under the MOA for the sale and delivery of the Vessel, pursuant to a Nomination Letter dated 13 September 2018.
|
III. |
As the exact dates of the respective time charter party as well as the addenda thereto between the Sellers and the Charterer ("the
Charter Party
") – meanwhile novated to the Buyers pursuant to a Novation Agreement dated 10 October 2018 (the "
Novation Agreement
") – have neither been correctly reflected in Clause 22 of the MOA nor in the Addendum No. 1, the Parties agreed to enter into this Addendum No. 2 in order to clarify the correct dates of the Charter Party.
|
1. |
For the sake of good order, the Parties herewith confirm, that the Charter Party entered into between the Sellers and the Charterer is dated 20th May 2016 and amended and prolonged for the first time on 18th January 2017 (in direct continuation of the Charter Party dated 20th May 2016) and further amended and prolonged for the second time on 12th January 2018 (in direct continuation of the first amendment dated 18th January 2017) (together with any and all amendments and addenda thereto hereinafter called the "
Time Charter
").
|
2. |
Any words and expressions defined in the MOA shall have the same meaning when used herein and terms used and expressions defined in this Addendum No. 2 shall have, vice versa, the same meaning in the MOA, in each case unless otherwise defined or unless the context otherwise requires.
|
3. |
This Addendum No. 2 shall be governed by the laws of England and shall be subject to the arbitration procedure as said out in Clause 16 of the MOA, as though it was set out herein.
|
4. |
If one or more provisions of this Addendum No. 2 should be or become fully or partly invalid or unenforceable, the other provisions of this Addendum No. 2 or the rest of the provisions, as the case may be, shall remain unaffected. The parties shall agree on a new provision replacing the invalid or unenforceable one or its part, which comes as close as legally possible to the intended economic effect of the invalid or unenforceable provision. This stipulation applies mutatis mutandis if it turns out that the parties have by mistake omitted to regulate a certain question.
|
5. |
Save as set out herein in this Addendum No. 2, all other terms and conditions of the MOA, remain unchanged and in full force and effect.
|
/s/ illegible | /s/ Stavros Gyftakis | ||
ON BEHALF OF THE SELLERS
|
ON BEHALF OF THE BUYERS
|
||
NAME:
|
NAME: Stavros Gyftakis
|
||
TITLE:
|
TITLE: Director
|
/s/ Stavros Gyftakis | |
ON BEHALF OF SEANERGY
|
|
NAME: Stavros Gyftakis
|
|
TITLE: Attorney-in-fact
|
1. |
Guarantee
: The Guarantor hereby irrevocably and unconditionally guarantees the timely
performance the obligation by the Counterparty to provide the Vessel to UGC (the "
Obligation
"). Guarantor and UGC acknowledge that the Contract's terms provide for the Vessel to be installed with a fuel oil scrubber at UGC's expense and UGC to benefit from the fuel oil savings (if any) arising from the scrubber installation throughout the term of the Contract. Guarantor acknowledges and agrees that the failure of the Counterparty to perform the Obligation may lead to the inability of UGC to realise such savings. UGC acknowledges and agrees that the Guarantor shall only be obligated to pay money and shall have no obligation to perform otherwise under the Contract, including, without limitation, to sell, deliver, supply or transport any commodity.
|
a) |
where the Fuel Spread (as defined in the Contract) is lower than USD$250 pmt, by 100% of the Fuel Spread;
|
b) |
where the Fuel Spread is between USD$ 251 pmt and USD$350 pmt, by 75% of the Fuel Spread over USD 250 pmt plus a) above;
|
c) |
where the Fuel Spread is above USD$351 pmt, by 57.5% Fuel Spread over USD$350pmt plus a) and b) above.
|
2. |
Payment Demand and Terms of Payment:
If the Counterparty fails or refuses for whatever reason to fulfil the Obligation, UGC shall notify the Guarantor in writing of the manner in which the Counterparty has failed to perform and demand that payment be made by the Guarantor under this Guarantee (a "
Payment Demand
").
|
3. |
Waivers:
This is an unconditional and absolute on demand Guarantee (Garantie) and not merely a surety (Bürgschaft). Therefore Guarantor hereby waives (a) any right to assert any counterclaim or other defenses before payment and to exercise any right to set-off; (b) any right to require that any action or proceeding be brought against the Counterparty or any other person; and (c) to require that UGC seek enforcement of any other credit support or performance assurance securing the fulfillment of the Obligation, prior to any action against Guarantor under the terms hereof.
|
4. |
Guarantor hereby consents to the renewal, compromise, extension, acceleration or other changes in the time of performance of or other changes in the terms of the Obligation of the Counterparty under the Contract, or any part thereof or any changes or any other modifications to the terms of the Contract.
|
5. |
Assignment:
The Guarantor shall not, without the prior written consent of UGC, assign to any entity its rights or obligations under this Guarantee. UGC may at any time with the prior written consent (not to be unreasonably withheld) of the Guarantor assign the whole or any part of its rights under this Guarantee to any person to whom the whole or any part of the rights of UGC under the Contract has been assigned.
|
6. |
Subrogation:
The Guarantor agrees that for so long as until the Cap has reduced to zero pursuant to paragraph 2 above it shall not exercise any right which it may at any time have (a) to be indemnified by the Counterparty or (b) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any right of UGC or of any other security taken in respect of the Counterparty's Obligation.
|
7. |
Termination:
This Guarantee shall terminate on the earlier of the (i) date on which the Counterparty has performed the Obligation or (ii) the date on which the Cap has reduced to zero.
|
8. |
Representations and warranties:
The Guarantor represents and warrants that:
|
9. |
Miscellaneous:
This Guarantee shall be binding upon the Guarantor, its successors and assigns and inure to the benefit of and be enforceable by UGC, its successors and assigns.
|
/s/ Stavros Gyftakis | /s/ Novera Khan | |
For and on behalf of the
|
||
Guarantor
|
Uniper Global Commodities SE
|
|
Stavros Gyftakis | Novera Khan | |
Chief Risk Officer |
1. |
Guarantee
: The Guarantor hereby irrevocably and unconditionally guarantees the timely
performance the obligation by the Counterparty to provide the Vessel to UGC (the "
Obligation
"). Guarantor and UGC acknowledge that the Contract's terms provide for the Vessel to be installed with a fuel oil scrubber at UGC's expense and UGC to benefit from the fuel oil savings (if any) arising from the scrubber installation throughout the term of the Contract. Guarantor acknowledges and agrees that the failure of the Counterparty to perform the Obligation may lead to the inability of UGC to realise such savings. UGC acknowledges and agrees that the Guarantor shall only be obligated to pay money and shall have no obligation to perform otherwise under the Contract, including, without limitation, to sell, deliver, supply or transport any commodity.
|
a) |
where the Fuel Spread (as defined in the Contract) is lower than USD$250 pmt, by 100% of the Fuel Spread;
|
b) |
where the Fuel Spread is between USD$ 251 pmt and USD$350 pmt, by 75% of the Fuel Spread over USD 250 pmt plus a) above;
|
c) |
where the Fuel Spread is above USD$351 pmt, by 57.5% Fuel Spread over USD$350pmt plus a) and b) above.
|
2. |
Payment Demand and Terms of Payment:
If the Counterparty fails or refuses for whatever reason to fulfil the Obligation, UGC shall notify the Guarantor in writing of the manner in which the Counterparty has failed to perform and demand that payment be made by the Guarantor under this Guarantee (a "
Payment Demand
").
|
3. |
Waivers:
This is an unconditional and absolute on demand Guarantee (Garantie) and not merely a surety (Bürgschaft). Therefore Guarantor hereby waives (a) any right to assert any counterclaim or other defenses before payment and to exercise any right to set-off; (b) any right to require that any action or proceeding be brought against the Counterparty or any other person; and (c) to require that UGC seek enforcement of any other credit support or performance assurance securing the fulfillment of the Obligation, prior to any action against Guarantor under the terms hereof.
|
4. |
Guarantor hereby consents to the renewal, compromise, extension, acceleration or other changes in the time of performance of or other changes in the terms of the Obligation of the Counterparty under the Contract, or any part thereof or any changes or any other modifications to the terms of the Contract.
|
5. |
Assignment:
The Guarantor shall not, without the prior written consent of UGC, assign to any entity its rights or obligations under this Guarantee. UGC may at any time with the prior written consent (not to be unreasonably withheld) of the Guarantor assign the whole or any part of its rights under this Guarantee to any person to whom the whole or any part of the rights of UGC under the Contract has been assigned.
|
6. |
Subrogation:
The Guarantor agrees that for so long as until the Cap has reduced to zero pursuant to paragraph 2 above it shall not exercise any right which it may at any time have (a) to be indemnified by the Counterparty or (b) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any right of UGC or of any other security taken in respect of the Counterparty's Obligation.
|
7. |
Termination:
This Guarantee shall terminate on the earlier of the (i) date on which the Counterparty has performed the Obligation or (ii) the date on which the Cap has reduced to zero.
|
8. |
Representations and warranties:
The Guarantor represents and warrants that:
|
9. |
Miscellaneous:
This Guarantee shall be binding upon the Guarantor, its successors and assigns and inure to the benefit of and be enforceable by UGC, its successors and assigns.
|
/s/ Stavros Gyftakis | /s/ Novera Khan | |
For and on behalf of the
|
For and on behalf of the
|
|
Guarantor
|
Uniper Global Commodities SE
|
|
Stavros Gyftakis | Novera Khan | |
Chief Risk Officer |
A. |
The BUILDER intends to design, build, equip, complete and deliver eight (8) exhaust gas cleaning systems to Yiu Lian Zhoushan Shipyard (the "YARD") for the BUYER and to sell the exhaust gas cleaning system to the BUYER.
|
B. |
The BUYER intends to purchase and take delivery of such exhaust gas cleaning systems from the BUILDER.
|
1. |
Scope of the Agreement:
|
· |
MV Lordship, IMO no. 9519066 ("MV Lordship")
|
· |
MV Championship, IMO no. 9403516 ("MV Championship")
|
· |
MV Partnership, IMO no. 9597848 ("MV Partnership")
|
· |
MV Squireship, IMO no. 9391646 ("MV Squireship")
|
· |
MV Premiership, IMO no. 9398747 ("MV Premiership")
|
· |
MV Geniuship, IMO no. 9398759 ("MV Geniuship")
|
· |
MV Knightship, IMO no. 9507893 ("MV Knightship")
|
· |
Tbn MV Fellowship (currently CPO Oceania), IMO no. 9522099 ("MV Fellowship")
|
2. |
Agreement Documents
|
- | Appendix No. 1 | Description and Technical Specification of the EQUIPMENT |
- | Appendix No. 2 | Scope of Work by the BUILDER |
1. |
Purchase Price:
|
2. |
Currency:
|
3. |
Terms of Payment for the Vessel Equipments:
|
(a) |
First Installment equal to 40% of the Vessel Equipment Purchase Price (US$579,760): Within fourteen (14) days after signing of this Agreement
|
(b) |
Second Installment equal to 40% of the Vessel Equipment Purchase Price (US$579,760): Within fourteen (14) days after the VESSEL EQUIPMENT is ready for dispatch in Korea (EX Work from the Builder) to the port mentioned in Article 3.1 below (the "Port")
|
(c) |
Third Installment equal to 10% of the Vessel Equipment Purchase Price (US$144,900): On the date falling fourteen (14) days after the successful commissioning of the VESSEL EQUIPMENT
|
(d) |
Fourth Installment equal to 10% of the Purchase Price (US$144,900): On the date falling (14) days after the applicable vessel's obtainment of the class approval
|
(a) |
First Installment equal to 35% of the Vessel Equipment Purchase Price (US$507,150): Within fourteen (14) days after October 1, 2018
|
(b) |
Second Installment equal to 45% of the Vessel Equipment Purchase Price (US$652,050): Within fourteen (14) days after the VESSEL EQUIPMENT is ready for dispatch in Korea (EX Work from the Builder) to the Port
|
(c) |
Third Installment equal to 10% of the Vessel Equipment Purchase Price (US$144,900): On the date falling fourteen (14) days after the successful commissioning of the VESSEL EQUIPMENT
|
(d) |
Fourth Installment equal to 10% of the Purchase Price (US$144,900): On the date falling fourteen (14) days after the applicable vessel's obtainment of the class approval
|
(a) |
First Installment equal to 35% of the Vessel Equipment Purchase Price (US$507,150): Within fourteen (14) days after December 1, 2018
|
(b) |
Second Installment equal to 45% of the Vessel Equipment Purchase Price (US$652,050): Within fourteen (14) days after the VESSEL EQUIPMENT is ready for dispatch in Korea (EX Work from the Builder) to the Port
|
(c) |
Third Installment equal to 10% of the Vessel Equipment Purchase Price (US$144,900): On the date falling fourteen (14) days after the successful commissioning of the VESSEL EQUIPMENT
|
(d) |
Fourth Installment equal to 10% of the Purchase Price (US$144,900): On the date falling fourteen (14) days after the applicable vessel's obtainment of the class approval
|
4. |
Method of Payment:
|
5. |
Interest on Delayed Payment
|
1. |
Delivery
|
Delivery time |
On or prior to April 30, 2019
|
Delivery conditions |
DDP (Yard)
|
Delivery according to |
INCOTERMS 2010
|
Delivery time |
On or prior to May 31, 2019
|
Delivery conditions |
DDP (Yard)
|
Delivery according to |
INCOTERMS 2010
|
Delivery time |
On or prior to June 30, 2019
|
Delivery conditions |
DDP (Yard)
|
Delivery according to |
INCOTERMS 2010
|
Delivery time |
On or prior to July 31, 2019
|
Delivery conditions |
DDP (Yard)
|
Delivery according to |
INCOTERMS 2010
|
2. |
Ownership/Insurance upon Delivery
|
1. |
Delay due to Circumstances mentioned in Article XIII
|
2. |
BUILDER's Notice of Delay
|
(1)
|
A Force Majeure Event (as further described in ARTICLE XIII);
|
(2)
|
The Buyer's failure to comply with the payment obligations;
|
(3)
|
The Buyer's failure to allow access to the Vessel, the Yard or other infrastructure and to provide in a timely manner the necessary information and instructions which are necessary for the Builder's delivery of the Equipment; and
|
(4)
|
The Buyer's failure to receive the Equipment within the agreed delivery time; and
|
(5)
|
Any other material breach by the BUYER hereunder or any occurrence of an event disrupting the delivery which is beyond the BUILDER's control.
|
3. |
Remedies for the BUILDER's delay
|
1. |
BUILDER'S WARRANTY
|
(a) |
The BUILDER is promptly notified (within the warranty period) of any warranty claim; and
|
(b) |
The claimed defect in the EQUIPMENT was not caused by misuse, static discharge, abuse, neglect, improper handling, installation, unauthorized repair, alteration or accident. Modification of the EQUIPEMENT by the BUYER, or at the BUYER's direction, unless specifically authorized in writing by the BUILDER, shall invalidate the above warranty.
|
2. |
Sole Remedies
|
(a) |
The BUILDER shall be liable for personal injury only if it is proved that such injury was caused solely by a defect in the EQUIPMENT or is attributable solely to negligent Installation Instruction on the part of the BUILDER or others for whom the BUILDER was responsible.
|
(b) |
The BUILDER shall be liable for any direct damage or loss to property (other than the EQUIPMENT"), if such damage or loss is caused solely by defects in the EQUIPMENT or is solely attributable to negligent Installation Instruction on the part of the BUILDER or others for whom the BUILDER was responsible.
|
(c) |
The BUILDER's liability is in any event limited as set out in Article XII. It is emphasized however, that any direct damage to property (other than the EQUIPMENT, including, but not limited to, damage to other parts of the vessel or on the vessel itself), caused solely by defects in the EQUIPMENT or solely attributable to negligent incorrect Installation Instruction on the part of the BUILDER or others for whom the BUILDER was responsible, as detailed in Article 7.1(b) shall, for the purpose of this Article 7.1(c), not be considered indirect or consequential. For the sake of good order any indirect or consequential loss or damage steaming from such direct damage to property shall be excluded in accordance with Article 12.1 below.
|
(d) |
If a claim for damage as described in this Article VII is lodged against one of the Parties, the latter Party shall forthwith inform the other Party thereof in writing.
|
(e) |
The BUILDER and the BUYER shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the EQUIPMENT.
|
1. |
Exclusive to BUILDER
|
2. |
Parties' Warranty
|
1. |
Scope and Details for Supervision
|
- |
The scope of supervision by the BUILDER shall be limited to the parts comprising the VESSEL EQUIPMENT as delivered by the BUILDER.
|
- |
As to the period for supervision, the BUYER shall give a 4-week prior notice on or before the start of the same.
|
- |
Each period of supervision shall last not more than 4 weeks, and, where there has been a delay due to a cause not attributable to the BUILDER (including, but not limited to, the YARD) and the BUILDER was not able to perform the supervision the commissioning relating to the VESSEL EQUIPMENT, such delay ("Supervision Delay") shall also be included in such 4-week period.
|
- |
In the event that the 4-week period for supervision has exceeded due to the Supervision Delay, the BUYER upon demand shall pay the additional costs therefor to the BUILDER.
|
- |
The BUILDER's working hours for supervision shall not be longer than 8 hours per day.
|
2. |
Installation by BUYER
|
1. |
Scope and Details, Costs
|
- |
The scope of commissioning by the BUILDER shall be limited to the parts of comprising of the Vessel Equipment as delivered by the BUILDER
|
- |
As to each of the periods for commissioning, the BUYER shall give a 4-week prior notice on or before the start of the same.
|
- |
The period of commissioning shall last not more than 4 weeks, and, where there has been a delay due to a cause not attributable to the BUILDER (including, but not limited to, the YARD) and the BUILDER was not able to perform the commissioning relating to the VESSEL EQUIPMENT, such delay ("Commissioning Delay") shall also be included in such 4-week period.
|
- |
In the event that the 4-week period for commissioning has exceeded due to the Commissioning Delay, the BUYER upon demand shall pay the additional costs therefor to the BUILDER.
|
- |
The BUILDER's working hours for commissioning shall not be longer than 8 hours per day.
|
2. |
Costs
|
3. |
Certification
|
1. |
General Limitation
|
2. |
Exclusion and Limitation of Liability
|
3. |
Extent of Liability
|
1. |
Force Majeure
|
2. |
Notice
|
1. |
This Agreement has been prepared in English and shall be executed in duplicate and in such number of additional copies as may be required by either Party respectively.
|
2. |
Any amendments to this Agreement shall be made in writing and signed by both Parties in order to be valid.
|
3. |
If any provision under this Agreement is found to be inconsistent with or void under any applicable law, the validity of the remaining provisions shall not be affected thereby. In such case the Parties shall agree to replace the ineffective provision with a provision of fundamentally the same contents, which, however, is legally valid, binding, and enforceable under the said law.
|
4. |
Failure by any Party at any time or times to require performance of any provision of this Agreement shall in no way affect its rights to enforce the same, and the waiver by any Party of any breach or non-performance of any provision of this Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.
|
5. |
This Agreement may not be assigned by either Party unless consented to in writing by the other Party.
|
6. |
Upon or before delivery or in connection with the installation of the Exhaust Gas Cleaning System or in connection with the commissioning of the Exhaust Gas Cleaning System, the Builder shall provide the Buyer with (in electronic format), all technical and operational information, and all installation and maintenance manuals in respect of the Exhaust Gas Cleaning System, including appropriate certification under MARPOL, MPEC and a list of recommended scheduled maintenance activities in relation to the Exhaust Gas Cleaning System. It is understood that some documentation may not be available due to circumstances outside the Builder's control, such as missing or delayed validation by the classification society or delayed MARPOL approval. The Builder shall make reasonable endeavors to promptly provide such documents as soon as possible.
|
7. |
In addition to the provision of the information in Clause 6, the Builder undertakes to provide the Buyer with any information which the Buyer may reasonably request in relation to the Equipment including but not limited to any documents required for the import of the Equipment to the location of the Yard.
|
8. |
No variation of the Agreement, including the introduction of additional terms and conditions shall be effective unless it is agreed in writing by and between the Parties.
|
9. |
The Builder is entitled to subcontract in whole or in part any of the performance of the Equipment to a third party without the consent of the Buyer. The Builder is responsible for such subcontractor's acts and omissions as if they were the Builder's.
|
1. |
Governing Law
|
2. |
Arbitration
|
3. |
Alteration of Delivery Date
|
The BUYER:
SEANERGY MANAGEMENT CORP.
|
The BUILDER:
HYUNDAI MATERIALS CORPORATION
|
/s/ Stylianos Psyllakis | /s/ Cho, Wook Je |
By: Stylianos Psyllakis
|
By: Cho, Wook Je
|
Title: Director
|
Title:
|
Description
|
Unit
|
Value
|
|
Scrubber Type
|
-
|
U-Type
|
|
Gas Sources Connected
|
Pcs
|
4
|
|
Corresponding Sulphur Contents
|
%
|
0.1
|
|
Back-Pressure for Scrubber Unit
|
mmAq
|
Max 120
|
|
Sea Water Alkalinity for Scrubber design
|
μ
mol/l
|
2,200
|
|
Dry Running Availability
|
-
|
No
|
|
Maximum Dry Running Hours
|
hrs
|
Must use BY-PASS line during dry running mode
|
|
Materials
|
Inlet Duct
|
-
|
SMO254
|
Lower Body
|
-
|
Super Duplex
|
|
Upper Body
|
-
|
Duplex
|
|
Mist Eliminator
|
-
|
Cheveron(or equal)
|
|
Design Conditions: NCR conditions (85% of the MCR) and 3 x DGs at 800 kW each about 19 MW
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
Operational : 1 / Standby : 1
|
Capacity
|
m3/h
|
1,386
㎥
/hr x 70mH2O
|
Type
|
-
|
Centrifugal
|
Materials
|
-
|
Ni-Al-Bz / Duplex
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
4
|
Size
|
mm
|
Φ1,650
mm x 300mmL
/ Φ350
mm x 260mmL /
Φ350
mm x 260mmL
/ Φ350
mm x 260mmL /
|
Type
|
-
|
2-Way Tandem Damper
|
Materials
|
-
|
STS316L / STS304
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
4
|
Size
|
mm
|
Φ1,650
mm x 300mmL
/ Φ350
mm x 260mmL /
Φ350
mm x 260mmL
/ Φ350
mm x 260mmL /
|
Type
|
-
|
2-Way Tandem Damper
|
Materials
|
-
|
STS316L / STS304
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
2(operation : 1 + Standby :1)
|
Capacity
|
4,000
㎥
/hr x 303.5mmH2O
|
|
Type
|
-
|
Centrifugal
|
Function
|
-
|
For 2-Way Tandem damper sealing
|
Materials
|
-
|
Cast Iron
|
Contents
|
Description
|
Materials
|
RITTAL TS8885.500 Cabinet (800*1800*500)
|
Color(Standard)
|
RAL7032
|
Degree of Protection
|
IP44 Cabinet with workstation
|
Component
|
Switching Hub, Power Supply, DC UPS, DC Ground Monitor, DC24VCircuit Breaker, Noise Filter, Auxiliary Relay, Panel PC, Selector, Switch,Buzzer, EMCY Stop Button, Cooling Fan, Indication Lamp, Terminal Block,LCP, DIP, DOP, AIP, AOP, RTP, ECAP, FCAP
|
Voltage
|
DC 24V(20~36V), 150 Watts, Optional : 96~264VAC
|
Frequency
|
Optional : 96~264VAC (47~63Hz) + 3Hz
|
AMS(ICMS)
|
RS485, 2wire, Half-Duplex, 19200bps, 8bit(Data), 1bit(Stop), None(Flow),Function Code(03, 76), Slave Address(1:Control Panel)
|
GPS
|
RS422, 4Wire, Full-Duplex, 4800bps, 8bit(Data), 1bit(Stop), None(Flow),NMEA0183, ASC
Ⅱ
|
Contents
|
Description
|
|
Power Supply
|
230VAC 50/60 Hz.
|
|
Dimension
|
1260 x 865 x 530mm
|
|
Measuring Method
|
Non Dispersive Infrared
|
|
Measuring
Gas
|
SO2
|
0 ~ 1000ppm
|
CO2
|
0 ~ 20%
|
|
Accuracy
|
1% of Full Scale
|
|
Display
|
7.5" LCD Touch Screen
|
Component
|
Unit
|
Quantity
|
Alkali Dosing Unit for Open loop type
- Including Alkali Supply Pump
* Alkali Storage tank with heater system not included
|
SET
|
1
|
Main Components
|
Reference cond. For Scrubber
|
Operation Profile
|
||
Sea-going
|
Maneuvering
|
Port
|
||
Seawater Pump
|
320 kW
|
240 kW
|
240 kW
|
90 kW
|
Sealing Air Fan
|
7 Kw
|
7 kW
|
7 kW
|
7 kW
|
No.
|
Term
|
Hyundai
Materials
|
Customer
|
1
|
Basic design and engineering for scrubber equipment
|
●
|
|
2
|
Equipment and system drawings for scrubber equipment
|
●
|
|
3
|
Tag numbers for equipment, instruments
|
●
|
|
4
|
Foundations for the scrubber and electrical cabinets
|
●
|
|
5
|
Installation design engineering
|
●
|
|
6
|
Exhaust gas manifold before scrubber
|
●
|
|
7
|
Utility piping, technical water, cooling water
|
●
|
|
8
|
Structural support steel for supplied equipment
|
●
|
|
9
|
Instrumentation Package
|
●
|
|
10
|
All Tanks required capacity calculation
|
●
|
|
11
|
All Tanks manufacturing and delivering
|
●
|
|
12
|
Instrument air piping
|
●
|
|
13
|
Power and Instrumentation Wiring
|
●
|
|
14
|
Power Distribution and Switchboard
|
●
|
|
15
|
System Valves
|
●
|
|
16
|
Ship Side Valves, Including Non-Return Valve
|
●
|
|
17
|
System Installation
|
●
|
|
18
|
Supervision of Installation
|
●
|
|
19
|
Hull Penetrations and Floors
|
●
|
|
20
|
Piping Supply and Installation
|
●
|
|
21
|
Installation Survey / Technical Meeting
|
●
|
|
22
|
Bulkhead Penetrations
|
●
|
|
23
|
EGC Unit - Exhaust Gas Bellows
|
●
|
|
24
|
Instrument Air to Pneumatic Valves
|
●
|
|
25
|
Heating and Insulation
|
●
|
|
26
|
Pre-Commissioning(flushing, pressure testing of pipes)
|
●
|
|
27
|
Commissioning & crew training
|
●
|
|
28
|
Documentation for supplied ETM-B, OMM, SECP
|
●
|
|
29
|
Certificates for supplied equipment
|
●
|
|
30
|
Plan Approval
|
●
|
●
|
31
|
Preparation of Installation Instructions
|
●
|
(A) |
The
BUYER
and the
BUILDER
have entered into a SALE AND PURCHASE AGREEMENT dated 19
th
September 2018 for the sale by the BUILDER and the purchase by the BUYER of
exhaust gas cleaning systems
(together referred to as the "
Agreement"
)
for the following vessels in accordance with the terms and conditions of the Agreement:
|
· |
MV Lordship, IMO no. 9519066 ("MV Lordship")
|
· |
MV Championship, IMO no. 9403516 ("MV Championship")
|
· |
MV Partnership, IMO no. 9597848 ("MV Partnership")
|
· |
MV Squireship, IMO no. 9391646 ("MV Squireship")
|
· |
MV Premiership, IMO no. 9398747 ("MV Premiership")
|
· |
MV Geniuship, IMO no. 9398759 ("MV Geniuship")
|
· |
MV Knightship, IMO no. 9507893 ("MV Knightship")
|
· |
Tbn MV Fellowship (currently CPO Oceania), IMO no. 9522099 ("MV Fellowship")
|
(B) |
It has been agreed between the
BUYER
and the
BUILDER
that with respect to the MV Championship in particular a separate sale and purchase agreement be entered into with substantially the same terms and conditions of the Agreement and that all references to the MV Championship be deleted from the Agreement accordingly; and
|
(C) |
On page 2 of the Agreement at the Recital it is erroneously provided that the BUYER is existing under the laws of "England" and it should be stated that the BUYER's jurisdiction is the "Marshall Islands".
|
A. |
all references to the MV Championship be and are hereby deleted from the Agreement;
|
B. |
That the reference to the BUYER's jurisdiction is amended to read "Marshall Islands"
on page 2 of the Agreement at the Recital;
|
C. |
This Addendum No. 1 shall be governed by the laws of England and shall be subject to the arbitration procedure as set out in Article XV of the Agreement, as though it was set out herein.
|
D. |
Save as set out herein in this Addendum No. 1, all other terms and conditions of the Agreement remain unchanged and in full force and effect.
|
EXECUTED as a DEED
by Stylianos Psyllakis
for and on behalf of
SEANERGY MANAGEMENT CORP.
|
)
)
)
)
|
/s/ Stylianos Psyllakis
|
EXECUTED as a DEED
By Cho, Wook Je
for and on behalf of
HYUNDAI MATERIALS CORPORATION
|
)
)
)
)
|
/s/ Cho, Wook Je
|
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO in 1956 Code-name SALEFORM 2012 Revised 1966, 1983 and 1986/87, 1993 and 2012 |
"Sellers' Account" means
|
Beneficiary name:
|
GUARDIAN SHIPPING CO.
|
Account No.:
|
0497 16369595
|
IBAN:
|
DE73 2003 0000 0016 369 595
|
|
Swift code:
|
HYVEDEMM
|
"Sellers' Bank" means
|
Name of the Bank :
|
UNICREDIT BANK AG
|
Address of the Bank :
|
Neuer Wall 64, D-20354 Hamburg, Germany
|
|
Corresponding Bank:
|
Wells Fargo Bank, NA – New York
|
1. |
Purchase Price
|
2. |
Deposit
|
3. |
Payment
|
4. |
Inspection
|
5. |
Time and place of delivery and notices
|
6. |
Divers Inspection / Drydocking
|
(i) |
The Buyers shall have the option at their cost and expense to arrange for an underwater inspection by a diver approved by the Classification Society prior to the delivery of the Vessel. Such option shall be declared latest five (5) days prior to the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this Agreement The Sellers shall at their cost and expense make the Vessel available for such inspection. This inspection shall be carried out without undue delay and in the presence of a Classification Society surveyor arranged for by the Sellers and paid for by the Buyers. The Buyers' representative(s) shall have the right to be present at the diver's inspection as observer(s) only without interfering with the work or decisions of the Classification Society surveyor. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society. If the conditions at the place of delivery are unsuitable for such inspection, the Sellers shall at their cost and expense make the Vessel available at a suitable alternative place near to the delivery port, in which event the Cancelling Date shall be extended by the additional time required for such positioning and the subsequent re-positioning. The Sellers shall not tender Notice of Readiness prior to completion of the underwater inspection.
|
(ii) |
If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective so as to affect the Vessel's class then (1) unless repairs can be carried out afloat to the satisfaction of the Classification Society, the Sellers shall arrange for the Vessel to be drydocked at their expense for inspection by the Classification Society of the Vessel's underwater parts below the deepest load line, the extent of the inspection being in accordance with the Classification Society's rules (2) such defects shall be made good by the Sellers at their cost and expense to the satisfaction of the Classification Society without condition/recommendation** and (3) the Sellers shall pay for the underwater inspection and the Classification Society's attendance.
|
(iii) |
If the Vessel is to be drydocked pursuant to Clause 6(a) (ii) and no suitable dry-docking facilities are available at the port of delivery, the Sellers shall take the Vessel to a port where suitable drydocking facilities are available, within the delivery range as per Clause 5(a). Once drydocking has taken place the Sellers shall deliver the Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose of this Clause, become the new port of delivery. In such event the Cancelling Date shall be extended by the additional time required for the drydocking and extra steaming, but
|
(i) |
The Classification Society may require survey of the tailshaft system, the extent of the survey being to the satisfaction of the Classification Society surveyor. If such survey is not required by the Classification Society, the Buyers shall have the option to require the tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey being in accordance with the Classification Society's rules for tailshaft survey and consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare whether they require the tailshaft to be drawn and surveyed not later than by the completion of the inspection by the Classification Society. The drawing and refitting of the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be condemned or found defective so as to affect the Vessel's class, those parts shall be renewed or made good at the Sellers' cost and expense to the satisfaction of the Classification Society without condition/recommendation**.
|
(ii) |
The costs and expenses relating to the survey of the tailshaft system shall be borne by the Buyers unless the Classification Society requires such survey to be carried out or if parts of the system are condemned or found defective or broken so as to affect the Vessel's class, in which case the Sellers shall pay these costs and expenses.
|
(iii) |
The Buyers' representative(s) shall have the right to be present in the drydock, as observer(s) only without interfering with the work or decisions of the Classification Society surveyor.
|
(iv) |
The Buyers shall have the right to have the underwater parts of the Vessel cleaned and painted at their risk, cost and expense without interfering with the Sellers' or the Classification Society surveyor's work, if any, and without affecting the Vessel's timely delivery. If, however, the Buyers' work in drydock is still in progress when the Sellers have completed the work which the Sellers are required to do, the additional docking time needed to complete the Buyers' work shall be for the Buyers' risk, cost and expense. In the event that the Buyers' work requires such additional time, the Sellers may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in drydock or not.
|
7. |
Spares, bunkers and other items
|
- |
Liferafts
|
- |
Oxygen, acetylene and nitrogen cylinders
|
- |
Med Ox
|
- |
Portable gas detectors
|
- |
High speed internet and telecommunication system
|
8. |
Documentation
|
9. |
Encumbrances
|
10. |
Taxes, fees and expenses
|
11. |
Condition on delivery
|
12. |
Name/markings
|
13. |
Buyers' default
|
14. |
Sellers' default
|
15. |
Buyers' representatives
|
16. |
Law and Arbitration
|
17. |
Notices
|
18. |
Entire Agreement
|
19. |
COMPLIANCE AND SANCTIONS
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
/s/ Stamatios Tsantanis | /s/ Gao Xue | |
Name: Stamatios Tsantanis
|
Name: Gao Xue
|
|
Title: Director
|
Title: Attorney-in-fact
|
|
(1) |
Guardian Shipping Co., (the
"
Sellers
");
and
|
(2) |
Xiang B7 HK International Ship Lease Co., Limited (the
"Buyers
").
|
A. |
The Sellers shall provide the Buyers with the following original (unless otherwise specified below) documents, all at the place of the documentary closing (unless otherwise provided or agreed):
|
1. |
Bill of Sale
|
2. |
Certificate of Ownership and Encumbrance
|
3. |
Original Permission for sale issued by the RMI Registry.
|
4. |
New Certificate of Ownership and Encumbrance
|
5. |
Seller's Corporate Documents
|
(i) |
Certificate of Incorporation and Constitutional Documents of the Seller
- one (1) Copy Certified as true by the Sellers' legal counsel.
|
(ii) |
Certificate of Good Standing
- one
(1)
Original - legalized by Apostille by the Special Agent of the Republic of the Marshall Islands Certificate of Good Standing of the Sellers certifying the good standing of the Sellers issued by the Marshall Islands Registrar of Corporations dated not more than five (5) Banking Days prior to the delivery of the Vessel, duly legalized by Apostille by the Special Agent of the Marshall Islands.
|
(iii) |
Certificate of Incumbency
- one (1) Original - legalized by Apostille by the Special Agent of the Republic of the Marshall Islands Certificate of Incumbency of the Sellers issued by the Marshall Islands company registry authority ce11ifying on the date of the certificate all the directors/officers of the Sellers. Such certificate shall be dated no more than seven (7) days prior to the closing date.
|
(iv) |
Resolutions of the Board of Directors-
one (1) copy certified as true by the Sellers' legal counsel
|
(v) |
Seller's Shareholder Resolutions
- one (1) Copy Certified as true by the Sellers' legal counsel Seller's Shareholder Resolutions ratifying the Director's Resolutions above.
|
(vi) |
Power of Attorney
-
one (1) Original
-
notarized and legalized or apostilled
|
6. |
Class Maintenance Certificate
- one (1) copy with original to follow
|
7. |
Commercial Invoices
|
(i) |
Three (3) Original Commercial Invoices duly signed by the Sellers stating the main particulars and the Purchase Price for the Vessel marked "FULLY PAID" and signed on behalf of the Sellers under the Power of Attorney, dated the date of delivery.
|
(ii) |
Three (3) Original Commercial Invoices duly signed by the Sellers stating the quantities of the bunkers and any unused lubricating oils remaining on board on delivery of the Vessel with respective prices, marked "FULLY PAID" and signed on behalf of the Sellers under the Power of Attorney, dated the date of delivery.
|
8. |
Evidence of discontinued server of satellite communication
|
9. |
Undertaking Letters from the Sellers
|
(i) |
A letter of undertaking from the Sellers to the Buyers confirming to the best of their knowledge that, as at the time of delivery, the Vessel has not suffered any grounding and underwater damage since its latest dry- docking.
|
(ii) |
A letter of undertaking from the Sellers to the Buyers that to the best of their knowledge (a) the Vessel under present Ownership is not blacklisted by any nation or international organization and (b) that she has not been infested by Gypsy Moth.
|
(iii) |
A letter of undertaking duly executed by the Sellers and addressed to Buyers confirming that the Vessel, at the time of delivery is free from all charters
|
10. |
Additional Documents
|
B. |
The Buyers shall provide the Sellers with the following documents:
|
11. |
Business Registration Certificate, Certificate of Incorporation and Articles of Association - one (1) certified copy
|
12. |
Certificate of Incumbency- one (1) Original
|
13. |
Certificate of Continuing Registration- one (1) Original
|
14. |
Written Resolutions or Meeting Minutes of Board of Directors of the Buyers- one (1) certified copy
|
15. |
Power of Attorney - one (1) Original
|
C. |
Protocol of Delivery and Acceptance
|
16. |
Protocols of Delivery and Acceptance duly signed, dated and timed in TWO (2) ORIGINALS by Sellers' and Buyers' duly authorized representatives attending at the place of the documentary closing
|
D. |
Documents to be provided by the Seller to the Buyer
-
on board the Vessel
|
17. |
Continuous Synopsis Record Documents
-
original
|
18. |
Master's Declaration
-
one (1) Original
|
19. |
Technical Documents, Certificates and Other Documents of the Vessel
|
20. |
Log Books
|
21. |
Other Technical Documentation
|
/s/ Christos Sigalas
|
/s/ Gao Xue
|
|
Name: Christos Sigalas
|
Name: Gao Xue
|
|
Title: Director
|
Title: Attorney in fact
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
(1) |
Guardian Shipping Co.,
(th
e ''Sellers''
);
and
|
(2) |
Xiang B7 HK International Ship Lease Co., Limited
(the
''Buyers''
).
|
/s/ Stavros Gyftakis | /s/ Gao Xue | ||||
Name:
|
Stavros Gyftakis |
Name: Gao Xue
|
|||
Title:
|
Director
|
Title: Attorney-in-fact
|
|||
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and
purchase of ships. Adopted by BIMCO in 1956
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
Flag: Bahamas
|
Place of Registration: Nassau
|
GT/NT: 33,044/19,231
|
(ii) |
the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement shall be paid in full free of bank charges to the Sellers' Account against presentation of the Protocol of Delivery and Acceptance duly signed by Sellers and Buyers. Same shall be transferred by the Buyers to the Sellers' Bank via an irrevocable SWIFT MT103 and SWIFT MT199 prepositioned one (1) Banking Day prior to the scheduled delivery of the Vessel to be held on suspense account with Sellers' Bank to be released against the Protocol of Delivery and Acceptance duly signed by Sellers and Buyers.
|
(a)* |
The Buyers have inspected and accepted the Vessel's classification records. The Buyers have
|
|
|
(i) |
The Buyers shall have the option at their cost and expense to arrange for an underwater inspection by a diver approved by the Classification Society prior to the delivery of the Vessel. Such option shall be declared latest five (5) days prior to the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this Agreement The Sellers shall at their cost and expense make the Vessel available for such inspection. This inspection shall be carried out without undue delay and in the presence of a Classification Society surveyor arranged for by the Sellers and paid for by the Buyers. The Buyers' representative(s) shall have the right to be present at the diver's inspection as observer(s) only without interfering with the work or decisions of the Classification Society surveyor. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society. If the conditions at the place of delivery are unsuitable for such inspection, the Sellers shall at their cost and expense make the Vessel available at a suitable alternative place near to the delivery port, in which event the Cancelling Date shall be extended by the additional time required for such positioning and the subsequent re-positioning. The Sellers shall not tender Notice of Readiness prior to completion of the underwater inspection.
|
(ii) |
If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective so as to affect the Vessel's class then (1) unless repairs can be carried out afloat to the satisfaction of the ClassificationSociety, the Sellers shall arrange for the Vessel to be drydocked at their expense for inspection by the Classification Society of the Vessel's underwater parts below the deepest load line, the extent of the inspection being in accordance with the Classification Society's rules (2) such defects shall be made good by the Sellers at their cost and expense to the satisfaction of the Classification Society without condition/recommendation** and (3) the Sellers shall pay for the underwater inspection and the Classification Society's attendance.
|
(iii) |
If the Vessel is to be drydocked pursuant to Clause 6(a) (ii) and no suitable dry-docking
|
(c) |
If the Vessel is drydocked pursuant to Clause 6(a) (
ⅱ
)
|
(i) |
The Classification Society may require survey of the tailshaft system, the extent of the survey being to the satisfaction of the Classification Society surveyor. If such survey is not required by the Classification Society, the Buyers shall have the option to require the tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey being in accordance with the Classification Society's rules for tailshaft survey and consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare whether they require the tailshaft to be drawn and surveyed not later than by the completion of the inspection by the Classification Society. The drawing and refitting of the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be condemned or found defective so as to affect the Vessel's class , those parts shall be renewed or made good at the Sellers' cost and expense to the satisfaction of the Classification Society without condition/recommendation**.
|
(ii) |
The costs and expenses relating to the survey of the tailshaft system shall be borne by the Buyers unless the Classification Society requires such survey to be carried out or if parts of the system are condemned or found defective or broken so as to affect the Vessel's class, in which case the Sellers shall pay these costs and expenses.
|
(iii) |
The Buyers' representative(s) shall have the right to be present in the drydock, as observer(s) only without interfering with the work or decisions of the Classification Society surveyor.
|
(iv) |
The Buyers shall have the right to have the underwater parts of the Vessel cleaned and painted at their risk, cost and expense without interfering with the Sellers' or the Classification Society surveyor's work, if any, and without affecting the Vessel's timely delivery. If, however, the Buyers' work in drydock is still in progress when the Sellers have completed the work which the Sellers are required to do, the additional docking time needed to complete the Buyers' work shall be for the Buyers' risk, cost and expense. In the event that the Buyers' work requires such additional time, the Sellers may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in drydock or not.
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
/s/ Stamatios Tsantanis
|
/s/ Gao Xue
|
Name: Stamatios Tsantanis
|
Name: Gao Xue
|
Title: Director
|
Title: Attorney-In-Fact
|
(1) |
Gladiator Shipping Co.,
(the
"Sellers
");
and
|
(2) |
Xiang B8 HK International Ship Lease Co., Limited
(the '
'Buyers
").
|
A. |
The Sellers shall provide the Buyers with the following original (unless otherwise specified below) documents, all at the place of the documentary closing (unless otherwise provided or agreed):
|
1. |
Bill of Sale
|
2. |
Transcript of Register
|
3. |
New Transcript of Register
|
4. |
Seller's Corporate Documents
|
(i) |
Certificate of Incorporation and Constitutional Documents of the Seller
- one (1) Copy Certified as true by the Sellers' legal counsel.
|
(ii) |
Certificate of Good Standing-
one (1) Original - legalized by Apostille by the Special Agent of the Republic of the Marshall Islands Certificate of Good Standing of the Sellers certifying the good standing of the Sellers issued by the Marshall Islands Registrar of Corporations dated not more than five (5) Banking Days prior to the delivery of the Vessel, duly legalized by Apostille by the Special Agent of the Marshall Islands.
|
(iii) |
Certificate of Incumbency
- one (1) Original - legalized by Apostille by the Special Agent of the Republic of the Marshall Islands Certificate of Incumbency of the Sellers issued by the Marshall Islands company registry authority certifying on the date of the certificate all the directors/officers of the Sellers. Such certificate shall be dated no more than seven (7) days prior to the closing date.
|
(iv) |
Resolutions of the Board of Directors-
one (1) copy certified as true by the Sellers' legal counsel
|
(v) |
Seller's Shareholder Resolutions
- one (1) Copy Certified as true by the Sellers' legal counsel Seller's Shareholder Resolutions ratifying the Director's Resolutions above.
|
(vi) |
Power of Attorney
-
one (1) Original
-
notarized and legalized or apostilled
|
5. |
Class Maintenance Certificate
- one (1) copy with original to follow
|
6. |
Commercial Invoices
|
(i) |
Three (3) Original Commercial Invoices duly signed by the Sellers stating the main particulars and the Purchase Price for the Vessel marked "FULLY PAID" and signed on behalf of the Sellers under the Power of Attorney, dated the date of delivery.
|
(ii) |
Three (3) Original Commercial Invoices duly signed by the Sellers stating the quantities remaining on board on delivery of the bunkers in accordance with the Novation Agreement dated 21 September 2018 and lubricating oils with respective prices, marked "FULLY PAID" and signed on behalf of the Sellers under the Power of Attorney, dated the date of
|
7. |
Evidence of discontinued server of satellite communication
|
8. |
Undertaking Letters from the Sellers
|
(i) |
A letter of undertaking from the Sellers to the Buyers confirming to the best of their knowledge that, as at the time of delivery, the Vessel has not suffered any grounding and underwater damage since its latest dry- docking/bottom survey.
|
(ii) |
A letter of undertaking from the Sellers to the Buyers that to the best of their knowledge (a) the Vessel under present Ownership is not blacklisted by any nation or international organization and (b) that she has not been infested by Gypsy Moth.
|
(iii) |
A letter of undertaking duly executed by the Sellers and addressed to Buyers confirming that the Vessel, at the time of delivery is free from all charters other than the Existing Charterparty, encumbrances, mortgages and maritime liens or any other debts whatsoever and is not subject to Port State or other administrative detentions; also, undertaking to indemnify the Buyers against all consequences of claims made against the Vessel which have been incurred prior to the time of delivery of the Vessel to the Buyers.
|
9. |
Additional Documents
|
B. |
The Buyers shall provide the Sellers with the following documents:
|
10. |
Business Registration Certificate, Certificate of Incorporation and Articles of Association
- one (1)
certified copy
|
11. |
Certificate of Incumbency
-
one (1) Original
|
12. |
Certificate of Continuing Registration- one (1) Original
|
13. |
Written Resolutions or Meeting Minutes of Board of Directors of the Buyers- one (1) certified copy
|
14. |
Power of Attorney
-
one (1) Original
|
C. |
Protocol of Delivery and Acceptance
|
14. |
Protocols of Delivery and Acceptance duly signed, dated and timed in TWO (2) ORIGINALS by Sellers' and Buyers' duly authorized representatives attending at the place of the documentary closing
|
D. |
Documents to be provided by the Seller to the Buyer
-
on board the Vessel
|
15. |
Continuous Synopsis Record Documents
-
original
|
16. |
Master's Declaration
-
one (1) Original
|
17. |
Technical Documents, Certificates and Other Documents of the Vessel
|
18. |
Log Books
|
19. |
Other Technical Documentation
|
/s/ Christos Sigalas
|
/s/ Gao Xue
|
|
Name: Christos Sigalas
|
Name: Gao Xue
|
|
Title: Director
|
Title: Attorney in fact
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
A. |
The BUILDER intends to design, build, equip, complete and deliver one (1) exhaust gas cleaning system to Yiu Lian Zhoushan Shipyard (the "YARD") for the BUYER and to sell the exhaust gas cleaning system to the BUYER under this Agreement.
|
B. |
The BUYER intends to purchase and take delivery of such exhaust gas cleaning system from the BUILDER.
|
1. |
Scope of the Agreement:
|
2. |
Agreement Documents
|
- |
Appendix No. 1 Description and Technical Specification of the VESSEL EQUIPMENT
|
- |
Appendix No. 2 Scope of Work by the BUILDER
|
1. |
Purchase Price:
|
2. |
Currency:
|
3. |
Terms of Payment for the Vessel Equipment:
|
(a) |
First Installment equal to 40% of the Vessel Equipment Purchase Price (US$579,760): Within fourteen (14) days after signing of this Agreement
|
(b) |
Second Installment equal to 40% of the Vessel Equipment Purchase Price (US$579,760): Within fourteen (14) days after the VESSEL EQUIPMENT is ready for dispatch in Korea (EX Work from the Builder) to the port mentioned in Article 3.1 below (the "Port")
|
(c) |
Third Installment equal to 10% of the Vessel Equipment Purchase Price (US$144,900): On the date falling fourteen (14) days after the successful commissioning of the VESSEL EQUIPMENT
|
(d) |
Fourth Installment equal to 10% of the Purchase Price (US$144,900): On the date falling (14) days after the Vessel's obtainment of the class approval
|
4. |
Method of Payment:
|
5. |
Interest on Delayed Payment
|
1. |
Delivery
|
Delivery time
|
On or prior to May 31, 2019
|
||
Delivery conditions
|
DDP (Yard)
|
||
Delivery according to
|
INCOTERMS 2010
|
2. |
Ownership/Insurance upon Delivery
|
1. |
Delay due to Circumstances mentioned in Article XIII
|
2. |
BUILDER's Notice of Delay
|
(1) |
A Force Majeure Event (as further described in ARTICLE XIII);
|
(2) |
The Buyer's failure to comply with the payment obligations;
|
(3) |
The Buyer's failure to allow access to the Vessel, the Yard or other infrastructure and to provide in a timely manner the necessary information and instructions which are necessary for the Builder's delivery of the Vessel Equipment; and
|
(4) |
The Buyer's failure to receive the Vessel Equipment within the agreed delivery time; and
|
(5) |
Any other material breach by the BUYER hereunder or any occurrence of an event disrupting the delivery which is beyond the BUILDER's control.
|
3. |
Remedies for the BUILDER's delay
|
1. |
BUILDER'S WARRANTY
|
(a) |
The BUILDER is promptly notified (within the warranty period) of any warranty claim; and
|
(b) |
The claimed defect in the VESSEL EQUIPMENT was not caused by misuse, static discharge, abuse, neglect, improper handling, installation, unauthorized repair, alteration or accident. Modification of the VESSEL EQUIPEMENT by the BUYER, or at the BUYER's direction, unless specifically authorized in writing by the BUILDER, shall invalidate the above warranty.
|
2. |
Sole Remedies
|
(a) |
The BUILDER shall be liable for personal injury only if it is proved that such injury was caused solely by a defect in the VESSEL EQUIPMENT or is attributable solely to negligent Installation Instruction on the part of the BUILDER or others for whom the BUILDER was responsible.
|
(b) |
The BUILDER shall be liable for any direct damage or loss to property (other than the VESSEL EQUIPMENT), if such damage or loss is caused solely by defects in the VESSEL EQUIPMENT or is solely attributable to negligent Installation Instruction on the part of the BUILDER or others for whom the BUILDER was responsible.
|
(c) |
The BUILDER's liability is in any event limited as set out in Article XII. It is emphasized however, that any direct damage to property (other than the VESSEL EQUIPMENT, including, but not limited to, damage to other parts of the vessel or on the vessel itself), caused solely by defects in the VESSEL EQUIPMENT or solely attributable to negligent incorrect Installation Instruction on the part of the BUILDER or others for whom the BUILDER was responsible, as detailed in Article 7.1(b) shall, for the purpose of this Article 7.1(c), not be considered indirect or consequential. For the sake of good order any indirect or consequential loss or damage steaming from such direct damage to property shall be excluded in accordance with Article 12.1 below.
|
(d) |
If a claim for damage as described in this Article VII is lodged against one of the Parties, the latter Party shall forthwith inform the other Party thereof in writing.
|
(e) |
The BUILDER and the BUYER shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the VESSEL EQUIPMENT.
|
1. |
Exclusive to BUILDER
|
2. |
Parties' Warranty
|
1. |
Scope and Details for Supervision
|
- |
The scope of supervision by the BUILDER shall be limited to the parts comprising the VESSEL EQUIPMENT as delivered by the BUILDER.
|
- |
As to the period for supervision, the BUYER shall give a 4-week prior notice on or before the start of the same.
|
- |
Each period of supervision shall last not more than 4 weeks, and, where there has been a delay due to a cause not attributable to the BUILDER (including, but not limited to, the YARD) and the BUILDER was not able to perform the supervision the commissioning relating to the VESSEL EQUIPMENT, such delay ("Supervision Delay") shall also be included in such 4-week period.
|
- |
In the event that the 4-week period for supervision has exceeded due to the Supervision Delay, the BUYER upon demand shall pay the additional costs therefor to the BUILDER.
|
- |
The BUILDER's working hours for supervision shall not be longer than 8 hours per day.
|
2. |
Installation by BUYER
|
1. |
Scope and Details, Costs
|
- |
The scope of commissioning by the BUILDER shall be limited to the parts of comprising of the Vessel Equipment as delivered by the BUILDER
|
- |
As to the period for commissioning, the BUYER shall give a 4-week prior notice on or before the start of the same.
|
- |
The period of commissioning shall last not more than 4 weeks, and, where there has been a delay due to a cause not attributable to the BUILDER (including, but not limited to, the YARD) and the BUILDER was not able to perform the commissioning relating to the VESSEL EQUIPMENT, such delay ("Commissioning Delay") shall also be included in such 4-week period.
|
- |
In the event that the 4-week period for commissioning has exceeded due to the Commissioning Delay, the BUYER upon demand shall pay the additional costs therefor to the BUILDER.
|
- |
The BUILDER's working hours for commissioning shall not be longer than 8 hours per day.
|
2. |
Costs
|
3. |
Certification
|
1. |
General Limitation
|
2. |
Exclusion and Limitation of Liability
|
3. |
Extent of Liability
|
1. |
Force Majeure
|
2. |
Notice
|
1. |
This Agreement has been prepared in English and shall be executed in duplicate and in such number of additional copies as may be required by either Party respectively.
|
2. |
Any amendments to this Agreement shall be made in writing and signed by both Parties in order to be valid.
|
3. |
If any provision under this Agreement is found to be inconsistent with or void under any applicable law, the validity of the remaining provisions shall not be affected thereby. In such case the Parties shall agree to replace the ineffective provision with a provision of fundamentally the same contents, which, however, is legally valid, binding, and enforceable under the said law.
|
4. |
Failure by any Party at any time or times to require performance of any provision of this Agreement shall in no way affect its rights to enforce the same, and the waiver by any Party of any breach or non-performance of any provision of this Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.
|
5. |
This Agreement may not be assigned by either Party unless consented to in writing by the other Party.
|
6. |
Upon or before delivery or in connection with the installation of the Exhaust Gas Cleaning System or in connection with the commissioning of the Exhaust Gas Cleaning System, the Builder shall provide the Buyer with (in electronic format), all technical and operational information, and all installation and maintenance manuals in respect of the Exhaust Gas Cleaning System, including appropriate certification under MARPOL, MPEC and a list of recommended scheduled maintenance activities in relation to the Exhaust Gas Cleaning System. It is understood that some documentation may not be available due to circumstances outside the Builder's control, such as missing or delayed validation by the classification society or delayed MARPOL approval. The Builder shall make reasonable endeavors to promptly provide such documents as soon as possible.
|
7. |
In addition to the provision of the information in Clause 6, the Builder undertakes to provide the Buyer with any information which the Buyer may reasonably request in relation to the Vessel Equipment including but not limited to any documents required for the import of the Vessel Equipment to the location of the Yard.
|
8. |
No variation of the Agreement, including the introduction of additional terms and conditions shall be effective unless it is agreed in writing by and between the Parties.
|
9. |
The Builder is entitled to subcontract in whole or in part any of the performance of the Vessel Equipment to a third party without the consent of the Buyer. The Builder
|
1. |
Governing Law
|
2. |
Arbitration
|
3. |
Alteration of Delivery Date
|
1. |
The Term.
|
2. |
Termination for material breach.
|
The BUYER:
CHAMPION MARINE CO.
|
The BUILDER:
HYUNDAI MATERIALS CORPORATION
|
/s/ Stavros Gyftakis | /s/ Cho, Wook Je |
By: Stavros Gyftakis
|
By: Cho, Wook Je
|
Title: Director
|
Title: General Manager
|
Appendix No. 1 |
Description and Technical Specification of the VESSEL EQUIPMENT
|
Description
|
Unit
|
Value
|
|
Scrubber Type
|
-
|
U-Type
|
|
Gas Sources Connected
|
Pcs
|
4
|
|
Corresponding Sulphur Contents
|
%
|
0.1
|
|
Back-Pressure for Scrubber Unit
|
mmAq
|
Max 120
|
|
Sea Water Alkalinity for Scrubber design
|
μ
mol/l
|
2,200
|
|
Dry Running Availability
|
-
|
No
|
|
Maximum Dry Running Hours
|
hrs
|
Must use BY-PASS line during dry running mode
|
|
Materials
|
Inlet Duct
|
-
|
SMO254
|
Lower Body
|
-
|
Super Duplex
|
|
Upper Body
|
-
|
Duplex
|
|
Mist Eliminator
|
-
|
Cheveron(or equal)
|
|
Design Conditions: NCR conditions (85% of the MCR) and 3 x DGs at 800 kW each about 19 MW
|
|
No.
|
Section
|
Value
|
A
|
Diameter(mm)
|
3,800
|
|
B
|
Height(mm)
|
8,250
|
|
C
|
Length(mm)
|
7,960
|
|
D
|
Inlet Duct Dia.(mm)
|
2,870
|
|
Dry Weight(kg)
|
14,100
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
Operational : 1 / Standby : 1
|
Capacity
|
m3/h
|
1,386
㎥
/hr x 70mH2O
|
Type
|
-
|
Centrifugal
|
Materials
|
-
|
Ni-Al-Bz / Duplex
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
4
|
Size
|
mm
|
Φ1,650
mm x 300mmL
/ Φ350
mm x 260mmL /
Φ350
mm x 260mmL
/ Φ350
mm x 260mmL /
|
Type
|
-
|
2-Way Tandem Damper
|
Materials
|
-
|
STS316L / STS304
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
4
|
Size
|
mm
|
Φ1,650
mm x 300mmL
/ Φ350
mm x 260mmL /
Φ350
mm x 260mmL
/ Φ350
mm x 260mmL /
|
Type
|
-
|
2-Way Tandem Damper
|
Materials
|
-
|
STS316L / STS304
|
Description
|
Unit
|
Value
|
Number of Units
|
EA
|
2(operation : 1 + Standby :1)
|
Capacity
|
4,000
㎥
/hr x 303.5mmH2O
|
|
Type
|
-
|
Centrifugal
|
Function
|
-
|
For 2-Way Tandem damper sealing
|
Materials
|
-
|
Cast Iron
|
Contents
|
Description
|
Materials
|
RITTAL TS8885.500 Cabinet (800*1800*500)
|
Color(Standard)
|
RAL7032
|
Degree of Protection
|
IP44 Cabinet with workstation
|
Component
|
Switching Hub, Power Supply, DC UPS, DC Ground Monitor, DC24VCircuit Breaker, Noise Filter, Auxiliary Relay, Panel PC, Selector, Switch,Buzzer, EMCY Stop Button, Cooling Fan, Indication Lamp, Terminal Block,LCP, DIP, DOP, AIP, AOP, RTP, ECAP, FCAP
|
Voltage
|
DC 24V(20~36V), 150 Watts, Optional : 96~264VAC
|
Frequency
|
Optional : 96~264VAC (47~63Hz) + 3Hz
|
AMS(ICMS)
|
RS485, 2wire, Half-Duplex, 19200bps, 8bit(Data), 1bit(Stop), None(Flow),Function Code(03, 76), Slave Address(1:Control Panel)
|
GPS
|
RS422, 4Wire, Full-Duplex, 4800bps, 8bit(Data), 1bit(Stop), None(Flow),NMEA0183, ASC
Ⅱ
|
Contents
|
Description
|
|
Power Supply
|
230VAC 50/60 Hz.
|
|
Dimension
|
1260 x 865 x 530mm
|
|
Measuring Method
|
Non Dispersive Infrared
|
|
Measuring
Gas
|
SO2
|
0 ~ 1000ppm
|
CO2
|
0 ~ 20%
|
|
Accuracy
|
1% of Full Scale
|
|
Display
|
7.5" LCD Touch Screen
|
Component
|
Unit
|
Quantity
|
Alkali Dosing Unit for Open loop type
- Including Alkali Supply Pump
* Alkali Storage tank with heater system not included
|
SET
|
1
|
Main Components
|
Reference cond. For Scrubber
|
Operation Profile
|
||
Sea-going
|
Maneuvering
|
Port
|
||
Seawater Pump
|
320 kW
|
240 kW
|
240 kW
|
90 kW
|
Sealing Air Fan
|
7 Kw
|
7 kW
|
7 kW
|
7 kW
|
No.
|
Term
|
Hyundai
Materials
|
Customer
|
1
|
Basic design and engineering for scrubber equipment
|
●
|
|
2
|
Equipment and system drawings for scrubber equipment
|
●
|
|
3
|
Tag numbers for equipment, instruments
|
●
|
|
4
|
Foundations for the scrubber and electrical cabinets
|
●
|
|
5
|
Installation design engineering
|
●
|
|
6
|
Exhaust gas manifold before scrubber
|
●
|
|
7
|
Utility piping, technical water, cooling water
|
●
|
|
8
|
Structural support steel for supplied equipment
|
●
|
|
9
|
Instrumentation Package
|
●
|
|
10
|
All Tanks required capacity calculation
|
●
|
|
11
|
All Tanks manufacturing and delivering
|
●
|
|
12
|
Instrument air piping
|
●
|
|
13
|
Power and Instrumentation Wiring
|
●
|
|
14
|
Power Distribution and Switchboard
|
●
|
|
15
|
System Valves
|
●
|
|
16
|
Ship Side Valves, Including Non-Return Valve
|
●
|
|
17
|
System Installation
|
●
|
|
18
|
Supervision of Installation
|
●
|
|
19
|
Hull Penetrations and Floors
|
●
|
|
20
|
Piping Supply and Installation
|
●
|
|
21
|
Installation Survey / Technical Meeting
|
●
|
|
22
|
Bulkhead Penetrations
|
●
|
|
23
|
EGC Unit - Exhaust Gas Bellows
|
●
|
|
24
|
Instrument Air to Pneumatic Valves
|
●
|
|
25
|
Heating and Insulation
|
●
|
|
26
|
Pre-Commissioning(flushing, pressure testing of pipes)
|
●
|
|
27
|
Commissioning & crew training
|
●
|
|
28
|
Documentation for supplied ETM-B, OMM, SECP
|
●
|
|
29
|
Certificates for supplied equipment
|
●
|
|
30
|
Plan Approval
|
●
|
●
|
31
|
Preparation of Installation Instructions
|
●
|